Conflict, Politics and Crime: Aboriginal Communities and the Police

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CONFLICT, POLITICS AND CRIME

PDF OUTPUT c: ALLEN & UNWIN r: DP1\BP4609W\PRELIMS p: (02) 6232 5991 f: (02) 6232 4995 e: [email protected] 36 DAGLISH STREET CURTIN ACT 2605

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Chris Cunneen is Associate Professor in Criminology and Director of the Institute of Criminology, Sydney University Law School. He has published widely on Aboriginal people and the criminal justice system, an is the co-author of Indigenous People and the Law in Australia (1995) and Juvenile Justice: An Australian Perspective (1995). He co-edited Faces of Hate: Essays on the Incidence and Nature of Hate Crime in Australia (1997).


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CONFLICT, POLITICS AND CRIME Aboriginal Communities and the Police

Chris Cunneen

ALLEN & UNWIN


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First published in 2001 Copyright © Chris Cunneen 2001 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher. The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of this book, whichever is the greater, to be photocopied by any educational institution for its educational purposes provided that the educational institution (or body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. Allen & Unwin 83 Alexander Street Crows Nest NSW 2065 Australia Phone: (61 2) 8425 0100 Fax: (61 2) 9906 2218 Email: [email protected] Web: http://www.allenandunwin.com National Library of Australia Cataloguing-in-Publication entry: Set in 10/12 pt New Baskerville by DOCUPRO, Canberra Printed by CMO Image Printing Enterprise, Singapore 10 9 8 7 6 5 4 3 2 1


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Contents CONTENTS

Acknowledgments List of acronyms List of tables

vii viii ix

1 Introduction

1

2 The criminalisation of Indigenous people Police custody Imprisonment Juvenile detention Explaining Aboriginal offending patterns and over-representation Offending patterns The impact of policing on offending The law and policing Judicial decision-making Spatial factors: environment and location Cultural difference Socioeconomic factors Resistance Theorising the impact of policing on crime figures

17 18 21 23 24 25 29 32 34 36 38 40 42 43

3 The nature of colonial policing Dispossession and war: police as military The intensity of surveillance: police as guardians The regulation of personal, familial and social relations Assimilation The nature of colonial policing

46 49 62 66 73 75

4 From over-policing to zero tolerance Over-policing Policing social and cultural life

80 85 91

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Paramilitary police and public order Over-policing and zero tolerance

97 102

5 Terror, violence and the abuse of human rights Terror and the politics of colonialism Policing as terror Terror and trauma The abuse of human rights

106 106 108 121 127

6 Police culture and the use of discretion Police discretion and Indigenous young people Police culture Discretion, police culture and human rights

130 132 143 154

7 Policing Indigenous women Colonisation as a gendered project Policing responses to violence against Indigenous women Indigenous women and public order offences The effects of public order policing

157 158

8 Governance and the policing of contested space Social space and social order: the spatiality of policing Resistance and governance

180

9 The reform of policing policies Community policing and proportional responses Aboriginal Policy Statements and Aboriginal Strategic Plans Management strategies Aboriginal Community Police and Community Liaison Officers The demand for greater autonomy: Aboriginal Justice Agreements

205 206

10 Policing and postcolonial self-determination Citizenship, human rights and the criminal justice system Indigenous self-determination Self-determination in the international context

229

Notes Bibliography Index

253 269 295


160 165 166

180 191

210 213 216 221

233 237 244

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Acknowledgments ACKNOWLEDGMENTS

This book has grown out of many years of work with colleagues and friends. It has benefited immensely from their discussions, critiques and insights. I would like to particularly thank Paul Behrendt, Greta Bird, Harry Blagg, Nerida Blair, Jim Brooks, Murray Chapman, Mick Dodson, Mark Findlay, Cec Fisher, Terry Libesman, Garth Luke, David McDonald, Francis and Greg McKellar, Gary Martin, Irene Moss, Kate Munro, Clearie Quayle, Julie Stubbs, Roberta Sykes, Rob White and Sue Zelinka. Many Indigenous organisations have assisted my research work including Aboriginal Legal Ser vices, Aboriginal Justice Advisor y Committees, ATSIC, and the Aboriginal and Torres Strait Islander Social Justice Unit in the Human Rights and Equal Opportunity Commission. I would also like to thank Natalie Brown, Zena Dabboussy and Mary Spiers who have worked with me as research staff on various projects which are reflected in this book. Amanda Andreazza assisted with the preparation of the manuscript. Finally, thanks to John Iremonger, Karen Penning, and Emma Cotter from Allen & Unwin, as well as their anonymous reviewer.

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List of Acronyms LIST OF ACRONYMS

AAPA ABS ACLOs ADB ALRC ATSIC CAT

Australian Aboriginal Progressive Association Australian Bureau of Statistics Aboriginal Community Liaison Officers Anti-Discrimination Board (New South Wales) Australian Law Reform Commission Aboriginal and Torres Strait Islander Commission Convention Against Torture and Other Cruel or Degrading Human Treatment CDEP Community Development Employment Program CEDAW Convention for the Elimination of Discrimination Against Women CERD Convention on the Elimination of All Forms of Racial Discrimination CROC Convention on the Rights of the Child EAC Ethnic Affairs Commission HREOC Human Rights and Equal Opportunity Commission ICCPR International Covenant on Civil and Political Rights ICESCR International Convention on Economic, Social and Cultural Rights ICJ International Commission of Jurists NAALAS North Australian Aboriginal Legal Aid Service NATSIS National Aboriginal and Torres Strait Islander Survey NISATSIC National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families OCR Operations and Crime Reviews PTSD Post Traumatic Stress Disorder SWOS Special Weapons and Operations Squad TRG Tactical Response Group WGIP [United Nations] Working Group on Indigenous Peoples

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List of tables LIST OF TABLES

Table 1: Table 2: Table 3:

Table 4:

Indigenous and non-Indigenous people in police custody, Australia, August 1995 Indigenous and non-Indigenous people in prison, Australia, 30 June 1995 Indigenous and non-Indigenous young people (10–17 years) in detention, Australia, 30 June 1997 Police numbers in Aboriginal towns, New South Wales, 1986–90

19 22

23 87

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1 Introduction CONFLICT, POLITICS AND CRIME INTRODUCTION

This book is an analysis of policing in Indigenous communities. (I have used the terms ‘Aboriginal’, ‘Indigenous’ and ‘Aboriginal and Torres Strait Islander’ interchangeably throughout the text.) The book is not concerned with the institution of policing per se, nor does it rest on an essentialist view of the inherent ‘nature’ of Indigenous societies or cultures as monolithic or static. Rather it seeks to explore what is particular about the relationship between the institution of policing and Indigenous communities in Australia within a historical and contemporary framework. Poor relations between police forces and Indigenous communities throughout Australia have been a regular source of local, national and international criticism of the failure of governments to improve standards of policing and eradicate racist behaviour in public institutions.1 One of the most extensive royal commissions in the history of Australia—the Royal Commission into Aboriginal Deaths in Custody—was established after numerous deaths in police and prison custody. After an exhaustive inquiry into 99 deaths (63 of which were in police custody) Commissioner Elliot Johnston concluded the following: Let me say at once, it is my opinion that far too much police intervention in the lives of Aboriginal people throughout Australia has been arbitrary, discriminatory, racist and violent. There is absolutely no doubt in my mind that the antipathy which so many Aboriginal people have towards the police is based not just on historical conduct but upon the contemporary experience of contact with many police officers (Johnston 1991a, vol. 2, p. 195).

It is perhaps a similar point that Aboriginal writer and ex-prisoner, Kevin Gilbert, had made a decade and a half before the Royal Commission: ‘The real horror of Aboriginal Australia today is locked away in police files and child welfare reports. It is a story

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of private misery and degradation, caused by a complex chain of historical circumstance, that continues into the present’ (Gilbert 1978, pp. 2–3). Numerous government inquiries over recent years have investigated the factors impacting on relations between Indigenous people and the police. Indeed, the issue has been widely canvassed since the early 1980s. Many of these reports involved substantial recommendations—the most extensive of which was the Royal Commission into Aboriginal Deaths in Custody and its 339 recommendations, many of which were directly related to policing matters.2 There is also a substantial and growing body of academic literature which refers to various aspects of Indigenous–police relations. While there are gaps in the research which need to be remedied, overall it is clear that considerable resources have gone into identifying various aspects of the relationship between Aboriginal and Torres Strait Islander people and criminal justice agencies. Yet, despite the plethora of inquiries, reports and their respective recommendations, the level of over-representation of Indigenous people in the criminal justice system has not significantly improved, and the issue of poor relations between police and Indigenous people remains as significant as ever. Given the body of existing literature, what can another book contribute that is new to our understanding of policing in Indigenous communities? The answer to this question lies, first, in the theoretical framework which is used to consider the role of policing Indigenous communities; second, in the detailed examination of particular policing practices which provide an insight into the distinct nature of the relationship between police and Indigenous people; and, third, in delineating the requirements for effective political change to provide for the realisation of Indigenous human rights. The central argument of this book is that the fundamental right of Indigenous self-determination is the foundation for developing respectful and effective policing in Indigenous communities. It is also argued that the relationship between police institutions and Indigenous communities has been one which has denied the human rights of Indigenous people in a number of areas besides the right to self-determination. In particular, rights to racial equality in legal processes and rights designed to protect individuals caught up in the criminal justice system have been routinely ignored in the policing of Indigenous people. At a broad level, policing is a state activity fundamentally


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captured within the wider historical trends of colonisation and nation-building, which occurred at the expense of dispossessed Indigenous peoples. Thus the effective expression of Indigenous self-determination is intimately connected with the process of decolonisation. The relationships created between institutions of the nation-state and Indigenous peoples have been forged within the context of a colonial political process and a colonial ‘mentality’. Those processes have relied on treating Indigenous people as people to be excluded from the nation-state. Particularly in more recent periods, criminalisation has played an effective role in this process. Ultimately, self-determination is thus directly linked to a process of decolonisation: both decolonisation of institutions and decolonisation of the colonial construction of Indigenous people as ‘criminals’. While much has been written in Australia on Indigenous people and the criminal law, little of that literature has concerned itself with theorising the relationship between the processes of colonisation and criminalisation, and in particular the role of police in this process. It has been the work of a few historians, rather than criminologists or sociolegal theorists, which has contributed most to our understandings in this area (see for example, Finnane 1994; Goodall 1982, 1990b, 1996; Haebich 1992; McGrath 1993). Certainly, some Indigenous writers have also drawn the links between crime, criminality and colonialism. Paul Coe noted two decades ago: Before dealing with specific aspects of the relationship between Aboriginals and the police, it is necessary that I emphasise to you how an understanding of the 200 year history of the oppression of Aboriginal people by Europeans is vital to understand Aboriginal relationships with the criminal law [today]. Almost 200 years ago the Europeans invaded this continent, stole the land from Aboriginal people without compensation, obliterated our culture and began a systematic and sustained campaign of oppression of our Aboriginal people (Coe 1980, p. 14).

Integral to an understanding of that history is the policy of genocide in its various manifestations, including mass murder, the removal of children and the policy of assimilation. ‘The reason for emphasising genocide . . . is to reinforce the point that the present relationships between Aboriginal people and the legal system with the police as agents can only be understood in the


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light of two centuries of oppression of Aboriginal people’ (Coe 1980, p. 15). Roberta Sykes has also referred to the way questions of crime and criminality take on a very different perspective for Aboriginal and Torres Strait Islander people (Sykes 1989). When theft of the land, dispossession and discriminatory legislation are considered, the answers to the questions of ‘Who is the criminal?’ and ‘What is justice?’ take on a different meaning. As Sykes notes, even if one accepts western definitions of crime, it is necessary to analyse how criminogenic conditions in Aboriginal communities were created. At least part of the answer can be found in the practices and policies of colonisation. Similarly, the contemporary denial of human rights and the extraordinary rate of imprisonment can be related to social, economic and political processes established as a result of colonisation. Within such an interpretive framework, Aboriginal people can be regarded as political prisoners. As the Queensland Aboriginal Coordinating Council stated in a submission to the Royal Commission into Aboriginal Deaths in Custody: In fact, many Aborigines feel they are political prisoners—gaoled by the discriminatory laws of a racist society. A society that’s very foundation is illegal . . . Traditional Aboriginal lore has largely been replaced by white law, Aboriginal custom and religion much interfered with by white society’s rules, priorities and lifestyle, traditional economies have been destroyed by the theft of Aboriginal land, and Aboriginal sovereignty and self-determination has been denied (Aboriginal Coordinating Council 1990, p. 44).

It has also been argued (unsuccessfully) that Australian courts have no jurisdiction to determine matters involving Aboriginal people. Legal precedent establishing Anglo-Australian jurisdiction over Indigenous people stretches back in time from the Murrell case in 1836 to the more recent matter of Walker before the High Court in 1994.3 The arguments presented by Indigenous people in these matters have fundamentally questioned the jurisdiction of Australian courts and inevitably lead to a consideration of the competing claims for Commonwealth and Indigenous sovereignty. Thus the process of colonisation and dispossession, and the lack of recognition of Indigenous customs and law, unavoidably politicises the relationship between Indigenous people and the criminal justice system. Irrespective of Commonwealth assertions of legitimate sovereignty, the criminal justice system is seen by


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many Indigenous people as the justice system of the colonial society. Outside Australia there has been some criminological literature which links crime and criminality with politics and power. While it is not the place to review that literature here, it is worth noting that writers such as Bottomley (1979) and Platt (1975) have argued that ‘crime is political’ in the sense that the legal system is based on power and privilege. Platt noted that the ‘state and legal apparatus, rather than directing our investigations should be the central focus of our investigation as a criminogenic institution, involved in corruption, deception and crimes of genocide’ (Platt 1975, p. 103). More recently, Cohen has called for a change in the criminological agenda to take account of the subject of crimes of the state and the violation of human rights (Cohen 1993, pp. 97–115). Such a call has particular resonance in Australia with the finding of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families that the forced removal of Indigenous children constituted genocide (NISATSIC 1997). Some writers on law and crime have theorised the state as an instrument of colonialism (Lopez-Rey 1970; Sumner 1982; Bird 1987). Sumner argued that an historical perspective on criminal law ‘must inevitably turn us towards colonialism . . . crime is not behaviour universally given in human nature and history, but a moral-political concept with culturally and historically varying form and content’ (Sumner 1982, p. 10). Similarly, Lopez-Rey noted that the serious crimes of genocide, war crimes and crimes of the state are neglected as subjects for analysis. In addition, contemporary criminology tends to define crime as a socioeconomic or psycho-psychiatric entity rather than as primarily a sociopolitical entity (Lopez-Rey 1970, p. 234). One of the few Australian studies to directly link Aboriginal over-representation in the criminal justice system with colonialism has been that of Bird. She has argued that Aboriginal crime is a sociopolitical construct within the context of colonisation (Bird 1987), thus placing the question of colonialism central to any understanding of the relationship between Aboriginal people and AngloAustralian law (see also, Bird and O’Malley 1990). There is a widespread understanding that police in Australia have acted as the ‘hard edge’ of colonial power in terms of enforcing non-Indigenous legal relations. This in itself provides us with only limited understanding of how such power is utilised,


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or indeed how it might be resisted, nor does it address the broader theoretical concerns of the nature of policing in Aboriginal and Torres Strait Islander communities. While this book argues for recognition of the continuities in policing from an earlier colonial period, it does so within the development of a particular theoretical framework. The development of that theoretical framework begins with the posing of a number of questions. How do we conceptualise the policing function as a mediatory activity between the nation-state and Indigenous peoples? How do we describe the relationship: Is it colonial? neocolonial? postcolonial? Colonisation is the process of subjecting a particular cultural or territorial group of people to the control of another group. It is a process which necessarily involves the exercise of power and a range of political strategies to ensure subjection. It is a process which implies exploitation, violence and cultural domination. It is a process which implies resistance on the part of those being dispossessed and expropriated. Finally, colonisation is an ongoing process. The colonisation of Australia did not simply happen when the British landed in Australia at the end of the eighteenth century. That was when European colonisation began in Australia. The process has evolved and developed, not without change, through the nineteenth and twentieth centuries. Colonialism set in motion a process of invasion, settlement and nation-building which fundamentally altered the lives of those people living in Australia who became known as Aborigines. These processes disrupted existing economies, political and religious institutions and cultures, and disrupted the modes of governance through which the Indigenous peoples of Australia lived. This colonial framework has profound implications for understanding both who Indigenous peoples are and their relationship with the Australian nation-state today. In the Australian context, ‘indigenous’ refers to the descendants of the inhabitants of pre-invasion Australia, who constitute culturally distinct groups which are a minority in the society which was born of colonisation. Indigenous status derives from the ancestral roots with land and culture which predate the dominant society. They are peoples by virtue of distinct cultures, languages and laws which tie individuals into socially cohesive units of extended families, tribal groups and nations.4 The concept of colonialism provides an overarching framework for this book, the conceptual tool for understanding the relation-


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ship between Indigenous people and the institutions of the Australian nation-state. I have used the notion of ‘neocolonial’ to refer to a particular moment in the transformation of colonial practices. Between the first Commonwealth/State Native Welfare Conference in 1937, when ‘absorption’ (assimilation) became the accepted principle underpinning government policy, and the 1967 referendum, where constitutional amendments permitted the Commonwealth Government to make laws for Aboriginal people, Indigenous people became ‘citizens’ of the nation-state known as the Commonwealth of Australia. Of course, in a formal sense Indigenous people had been British subjects by virtue of having been born in Australia, and after Commonwealth legislation in 1948 were automatically Australian citizens. Yet, as Chesterman and Galligan (1997) have forcefully argued, this citizenship amounted only to a ‘formal shell’ under which lay the systematic exclusion of Aboriginal people from the rights, entitlements and privileges of citizenship through a mosaic of discriminatory laws and administrative practices. However, during the 1950s and 1960s overtly discriminatory legislation which denied active citizenship to Aboriginal people began to disappear. The 1967 referendum provides a convenient marker in the process of dismantling the racist legislative regimes which had excluded Indigenous people from the rights and entitlements which most other inhabitants of Australia took for granted. My argument is that this transformation over a number of years had particular ramifications for understanding policing. Full citizenship rights for Aboriginal people implied at the very least the application of the principle of equality before the law.5 ‘Aborigines’ were no longer to be viewed as a race apart in the legislative framework which governed the behaviour and entitlements of individuals, and during this period became citizens with rights to be treated in a non-discriminatory manner. Some aspects of policing also changed. White (1997) has argued that it is the apparently rational and formally ‘racially neutral’ character of modern policing which differentiates it from previous involvement in warfare and protection policies. Although Aboriginal reserves and settlements have been ‘deinstitutionalised’ in the post-protection period, in practice police surveillance and intervention have provided for a new form of institutionalisation where the community itself comes to resemble a ‘total institution’ (Edmunds 1989, pp. 104–5). In a slightly different context, Rose


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(1996) has referred to this process as ‘deep colonising’. She notes that although the formal relations between Indigenous people and the colonial state have changed since the 1960s, colonising practices are still deeply embedded within institutions—even in those institutions which are meant to reverse the processes of colonisation. Rose is specifically referring to land rights legislation. However, her argument that ‘colonising practices embedded within decolonising institutions must not be understood simply as negligible side effects of essentially benign endeavours’ has resonance for understanding policing during the contemporary period of formal equality (Rose 1996, p. 6). Similarly, Bird and O’Malley (1990, p. 40) have noted that although ‘official’ colonialism has been replaced by new government policies of self-determination, the ‘colonial relationships of superiority and inferiority established over a long period are still powerful’. Colonial practices are not simply past behaviours, they have resonance in current practices. Although there have been formal changes in the police role after the demise of the protection period, particular practices of colonial policing were continued, even if in a modified form, throughout the remainder of the twentieth century. Part of the continuities in policing derived from the demands made by an active policy of assimilation, a process demanding intensive surveillance of Indigenous individuals, families and communities by the standards of non-Indigenous society.6 Thus while assimilation implied an end point of formal equality, the process of getting there involved significant state supervision. Day-to-day discrimination, racism, violence and terror also continued to be employed as strategies for the maintenance of a law and order which saw the massive criminalisation of Indigenous people through the formal processes of the criminal justice system. I have used the concept of ‘neocolonialism’ as a way of bringing together both the continuities of policing in the colonial period with an understanding of the political changes which have occurred in the legal context of citizenship, equality and the rule of law. It is my argument that current levels of criminalisation and the role police play in this process can be understood as an historical moment of neocolonial relations. The concept of neocolonialism in this context draws attention to the ‘deep colonising’ effects of criminalisation and the practices embedded in policing. For example, the individual, social and economic effects of high levels of Aboriginal juvenile


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criminalisation almost ensures exclusion from social participation. Criminalisation and incarceration impact negatively on the individual young person, as well as causing social disruption to communities and families. There are also economic effects on both the family and the young person as he or she is removed from any of the few employment opportunities that may exist. Second, there is the creation of a new generation of Indigenous people constructed as criminal. These long-term effects impact on the young people as they proceed into adulthood with a criminal record. The criminal record will ensure ongoing police surveillance; it will also justify more punitive intervention by the courts, and the use of imprisonment, resulting in the criminalisation and exclusion of another generation of Indigenous people. The extent of the criminalisation of Aboriginal young people should not be underestimated. A longitudinal study in South Australia found that seven out of ten Aboriginal boys and four out of ten Aboriginal girls had formal contact with juvenile justice agencies at some time during their adolescence (Morgan 1993, pp. 173–4). Similarly, a study in New South Wales found that in any one year 13 per cent of the Indigenous youth population had formal contact with police and courts (Luke and Cunneen 1995, p. 8). Finally, it is worth considering what the criminalisation and incarceration rates tell us about the character of a nation which is 98 per cent non-Indigenous, yet in many jurisdictions the majority of young people in detention centres are Aboriginal and Torres Strait Islander and in all states they are grossly overrepresented. High levels of criminalisation and imprisonment point to a country where the relationship between the state and its Indigenous minority is still overwhelmingly structured on a neocolonial basis of exclusion and dominance. In the various arenas of political science, international relations and history there is considerable discussion of the relationship between nation and the ‘imagined community’ (Anderson 1996; Pettman 1996). The state defines itself as synonymous with the nation. Nationalism constructs the ‘people’, but does so through a process of excluding and forgetting. The limits of belonging to the nation can also become the boundaries of the moral community (Pettman 1996, p. 47). To be outside the moral community is to be susceptible to the violence of the state. There has been little consideration of the issues of nationalism and the state in the development of criminological theory. To some extent I have followed Sumner’s (1990) argument


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concerning the link between ‘crime’ and national unity, which posits that the censure of crime attempts to unify and publicise a vision of the nation and its morality. Criminalisation is a key part of the building of the nation and the nation-state through processes of exclusion. Thus, ‘notions of crime control, the crime wave, the crime zone, crime as a social problem, and the breakdown in law and order, [are presented] as signs of a moral malaise threatening the constitutional integrity of the state’ (Sumner 1990, p. 49). This is particularly pertinent to understanding how criminalisation excludes and isolates Indigenous people from the assumed national consensus, and undermines both citizenship rights and Indigenous rights. Criminalisation legitimates excessive policing, the use of state violence, the loss of liberty and diminished social and economic participation. Criminalisation also permits an historical and political amnesia in relation to prior ownership of the land, contemporary land rights and Indigenous rights to self-determination. The political rights of Aboriginal and Torres Strait Islander people as Indigenous peoples are easily transformed into seeing Aboriginal and Torres Strait Islander people as a ‘law and order’ threat to national unity. Finally, it is important to engage with the concept of postcolonialism. Postcolonialism and postcoloniality are not concepts with settled meanings. I have used postcolonialism in this book to indicate a (future) moment in the relationship between Indigenous people and the nation-state: a moment when the nation-state devolves power through recognition of the principle of Indigenous self-determination. Thus an important part of this book is about the process of decolonisation, about decolonising the particular institution of policing, about the struggle towards the postcolonial. A number of other concepts help provide the theoretical framework within which this book has developed. They include self-determination, governance, sovereignty, coexistence and reconciliation. The principle of self-determination provides a key context through which policing in Indigenous communities is likely to evolve. Indigenous self-determination is both a complex legal doctrine implying particular rights7 and a political principle which implies certain political tasks which must be accomplished. In other words, Indigenous self-determination provides both a theoretical framework for understanding Indigenous political aspirations within the framework of international law, as well as a requirement for a practical set of institutions for governance. If


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policing is considered a central part of the maintenance of social order and, by extension, a key part of cultural institutions, it is apparent that Indigenous communities will demand greater control over policing matters when issues of self-determination arise. I have utilised the conceptual language of ‘governance’ to draw attention to the forms of social regulation which bind individuals and communities together. ‘To govern individuals is to get them to act and align their particular wills with ends imposed on them through constraining and facilitating models of possible actions’ (Burchell, 1991, p. 119; Hunt and Wickham 1994). In the way it is used in this book, governance can be thought of in two interconnected forms. First, as the governance of the state: these are practices and discourses of governmentality which regulate the social life of individuals within the administrative and legal frameworks of the state. Clearly, the police are a key institution of governance. Second, governance can be thought of as Indigenous governance, which continues to operate in Australia and has reflected quite different forms from the discourses and practices of liberalism. Notions of self-determination and governance inescapably lead to the issue of sovereignty. The concept of sovereignty, how it is exercised and its political and legal interpretations, is a central theme underpinning the arguments in this book. Sovereignty can be defined as the power and supreme authority in an independent political state. In a formalist definition, sovereignty is seen as authority which is absolute, indivisible and illimitable within the territorial jurisdiction of the state. In reality, sovereignty is divisible and shared. As McRae et al. (1997, p. 147) note, the Australian Commonwealth Constitution shares sovereignty between the Commonwealth and the states. In such a federal system, the potential to consider a share in sovereignty that involves Indigenous people is not difficult to imagine. The notion that Indigenous people can maintain a remnant sovereignty that survives the assertion of colonial sovereignty has been well established in US Supreme Court cases which characterised native American peoples as ‘domestic dependent nations’.8 In regard to Australia, I have been influenced by Reynolds’ (1996) argument that Mabo (2) has, despite its intention to do otherwise, reopened the serious consideration of Aboriginal sovereignty. In brief, Reynolds argues that the High Court found that Indigenous proprietary rights (native title) continued to exist after colonisation and the assertion of British sovereignty. If law and custom


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relating to land continued to exist, why didn’t other elements of Indigenous law, custom and politics? The logic of the Mabo (2) decision points in the direction that Indigenous people exercised, at the very least, some rudimentary form of sovereignty. If Indigenous people did exercise sovereignty, when and how did they lose it? Does some form of sovereignty still reside with Indigenous people? As Reynolds notes, these questions go to the core of Australian jurisprudence (1996, p. 13). For present purposes, they also pose serious issues in relation to the contemporary role of state police in Indigenous communities and the rights of Indigenous people to develop and maintain their own forms of social regulation. Finally, the arguments presented in this book are conceptualised within notions of reconciliation and coexistence. The Royal Commission into Aboriginal Deaths in Custody recommended in the last of 339 recommendations that a process be established to facilitate reconciliation between Indigenous and non-Indigenous Australians. Reconciliation was seen as essential if community discord and division were to be avoided. The process of reconciliation presupposes the development of political processes which allow for coexistence and the recognition of Indigenous rights—in particular the right to self-determination. As a result a significant part of the work of the Council for Aboriginal Reconciliation (along with ATSIC and the Aboriginal and Torres Strait Islander Social Justice Commission) has been around issues relating to constitutional reform, self-government, regional agreements and the need for an instrument (treaty) of reconciliation. These issues are not peripheral to the issue of policing. Indeed, like the interrelated issues of sovereignty and self-determination, they go to the heart of developing institutions of governance which are negotiated between government and Indigenous people, institutions of governance which are seen as legitimate by, and accountable to Indigenous communities. Thus a major reason for writing this book was to provide a foundation for radically rethinking the relationship between the institution of policing and Indigenous communities. The particularity of policing in Indigenous communities is explored here through a number of sites. The relationship is first considered with an examination of the contemporary empirical data on the extent to which Aboriginal and Torres Strait Islander people are brought into the criminal justice system (Chapter 2). There is no doubt, on the basis of the evidence, that Indigenous


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people are numerically over-represented on a range of justice indicators. A key question is why does this over-representation occur? Is it simply a case that high levels of Indigenous offending lead inevitably to over-representation in the criminal justice system? And, is it the case that criminal behaviour by Indigenous people then inevitably triggers a policing response? A major theoretical problem which emerges in a discussion of Indigenous over-representation in the criminal justice system is the extent to which the activity of policing itself contributes to the number of individuals and types of social groups which find themselves enmeshed within the criminal justice system. The nature of policing in Indigenous communities needs to be placed within an historical perspective. It has become generally accepted that police forces in Australia have provided a consistent and generally oppressive point of contact between Indigenous people and colonial society. The police role involved armed conflict during the early period of colonisation. During the latter part of the nineteenth century and for most of the twentieth, the police acted directly in the administration of the government’s policies of ‘protection’, which included maintaining order on the reserves, ensuring compliance with child removal policies and regulating Indigenous movement in country towns. The nature of this contact is not only of historical interest, it is also widely seen as influencing the structure of contemporary relations between police and Indigenous people (Ronalds, Chapman and Kitchener 1983; Foley 1984; Cunneen and Robb 1987; Johnston 1991a, vol. 2, p. 21). Chapter 3 examines the history of policing in Indigenous communities to draw out the continuities with contemporary policing. Indeed, it is a central argument that there are continuities in the policing of Aboriginal and Torres Strait Islander people in Australia which have carried on from the earlier colonial period. Drawing the link between the history of colonial policing and contemporary policing in Aboriginal and Torres Strait Islander communities raises a complex set of theoretical and empirical questions. One paradigm that has been suggested is the concept of ‘over-policing’. Historically, police functions were expanded specifically and significantly in relation to controlling Indigenous people, and police powers derived from a legislative regime aimed at their ‘protection’. The administration of the regulations formulated under the various Acts provided enormous day-to-day power to police to control the fundamental rights and liberties of


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Indigenous people. The argument developed in Chapter 4 is that the extent and nature of policing in Indigenous communities is at a level and a type which is not found in other communities in Australia. Issues which arise in the discussion of over-policing include the allocation of policing resources, the use of specialist squads, and the use of particular types of legislation, particularly in the arena of policing public places. A new manifestation of over-policing can be found in contemporary debates about ‘zero-tolerance policing’. Perhaps it is no coincidence that the government with the largest proportion of Indigenous people in its population, the Northern Territory, has been the most vocal in its support for zero-tolerance policing. The notion of ‘terror’, which provides an important link between colonial and contemporary policing, is explored in Chapter 5. The use of terror was a component in colonial attempts at control of Indigenous populations. As Morris (1992) has argued in the historical context, the use of violence against Indigenous people was not simply a series of undifferentiated acts, rather it was sustained within a culture of terrorism. ‘Terror’ also has a place in understanding contemporary policing in Indigenous communities, through the use of police specialist squads and more generally through the use of violence. The discussion on violence is extended to draw in the issue of institutional neglect. In particular, many Indigenous deaths in custody have occurred because of the failure of police to exercise a proper duty of care. Finally, the issue of terror and violence is placed within a human rights context. Police are constantly called upon to make decisions about how to respond to people and situations. The available evidence shows that police use their discretion in decision-making in a way that invariably disadvantages Aboriginal and Torres Strait Islander people. Discretionary decisions cover a range of matters, including the decision to intervene in the first instance, the decision to charge a person with an offence under particular legislation, the number of charges laid, the decision to proceed by way of arrest rather than summons or attendance notice, and the granting of bail and the conditions which might be attached to bail. The issue of police discretion is discussed in Chapter 6, with a focus on Indigenous young people. Police decision-making is inevitably tied to the context in which decisions are made, a context which can be usefully understood through the notion of police culture. To what extent has contemporary police culture inherited particular practices and beliefs


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INTRODUCTION

15

from the past, and to what extent do contemporary situations in policing Indigenous communities give rise to a set of beliefs and practices which lead to the criminalisation of Indigenous people? The history of the police role in Indigenous affairs influences both police responses to Aboriginal people and Aboriginal responses to police. Contemporar y police attitudes to Aboriginal people are also strongly influenced by various aspects of police culture which arguably derives at least partially from historical functions as well as a range of contemporary imperatives. These issues are also discussed in Chapter 6. A different consideration in the use of police discretion arises when the relationship between police and Indigenous women is considered. For example, the questions which arise in relation to police responses to family violence are complex. The ineffectual responses by police in this regard point, however, to their inability to provide adequate protection when Indigenous women and children are the victims of violence. Indigenous women have also been subjected to particular forms of violence by police themselves. An examination of the deaths of Indigenous women in police custody highlights these issues and is the basis of Chapter 7. Policing also occurs within a particular spatial dimension, as discussed in Chapter 8. There has been some new scholarship and arguments which consider the spatiality of ‘crime’ and policing in Indigenous communities (Mackay 1995; Broadhurst 1997; Tyler 1998). The argument presented here considers the contemporary spatiality of policing, particularly within the context of ‘community’. The spatiality of policing is also linked to the idea of resistance. In this context resistance is seen as productive and there is an analysis of a new space for policing within what can be called the ‘Aboriginal domain’ (Rowse 1992). A new policing space is the one being forged by Indigenous organisations, which has various manifestations including night patrols and community justice groups. The contradictions and tensions between the old space of the colonial order and the creation of a new space for Indigenous policing are played out in many of the current governmental policy responses to policing Indigenous communities. Chapter 9 analyses police policy responses to Indigenous people, particularly in light of the failure to engage in a shift in power relations to Indigenous communities. The final chapter examines the claim by Indigenous people to the right to self-determination, and the potential consequences of


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this to the development of policing in Indigenous communities. The United Nations Draft Declaration on the Rights of Indigenous Peoples is considered as an aspirational document in relation to Indigenous rights, particularly in the areas of cultural survival and self-government. The development of Indigenous ideas in relation to self-determination in Australia is also examined through a consideration of the recommendations from the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. It is argued that the adoption and development of practical measures towards self-determination for Indigenous people in Australia provides the point for the historical transformation to a society that can be considered ‘postcolonial’. In summary, policing needs to be theorised within the context of colonial relations and their evolving forms during the period of formal equality—a set of relationships I have referred to as ‘neocolonial’. This book provides a detailed examination of policing practices in Indigenous communities as a way of understanding the sui generis relationship which has developed between Indigenous people and the police, and involves consideration of issues such as the use of violence and terror, police decisionmaking and the role of police culture. The issue of police practices is placed within the context of broader human rights obligations. Finally, this book provides for a new understanding of the political requirements for effective change by arguing for the necessity of the decolonisation of policing institutions through the recognition of self-determination.


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2 The criminalisation of Indigenous people THE CRIMINALISATION OF INDIGENOUS PEOPLE

This chapter analyses the extent to which Aboriginal and Torres Strait Islander people come into contact with the police, the courts and the prison system—in other words, the extent to which Indigenous people are subjected to the formal processes of criminalisation. It then considers possible explanations for Indigenous offending with a particular emphasis on the extent to which policing interacts with and contributes to the high level of Indigenous criminalisation. Why is a consideration of the nature and extent of Indigenous offending important for an analysis of policing in Indigenous communities? There are both theoretical and policy-oriented responses to this question. Liberal explanations of policing essentially see the police role as a neutral bureaucratic response to individuals who are suspected of violating the criminal law—what Dixon (1997, p. 1) has referred to as the ‘legalistic–bureaucratic’ conception of policing. The law itself is seen as an embodiment of the popular will formulated through the democratic processes of a parliamentary system and thus as an impartial and universal force for justice. Within this view, offenders are those individuals who step outside a normative legal order which has widespread social and political legitimacy. Police are seen as exercising an independent authority bound by the rule of law and legitimised by popular consent (Hall and Scraton 1981, p. 472), thus exercising a specific mandate to uphold the law through enforcement of the criminal law and the maintenance of order. Specific powers are given to the police officer and they are accountable to the law itself (Brogden, Jefferson and Walklate 1988, pp. 1–2). An understanding of Indigenous offending goes to the heart of the question of whether police, and the criminal justice system more generally, uphold the rule of law with its principle of equality when dealing with Indigenous people. In other words, is

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the level of Indigenous over-representation in police custody, courts and prisons an actual reflection of offending levels? Are there so many Aboriginal people in the criminal justice system simply because they commit more offences than other people? Or alternatively, does policing itself inevitably influence the extent to which particular individuals are drawn into the criminal justice system? Such a moulding of the human material brought before the law might occur through either the ‘legitimate’ use of police functions (such as maintaining public order) or through extra-legal or illegal police actions (such as racist policing).

POLICE CUSTODY Police are usually the first point of contact with the criminal justice system, and it is a reasonable place to begin assessing the extent of Aboriginal criminalisation. While data on the use of police custody have been historically difficult to obtain, one outcome of the Royal Commission into Aboriginal Deaths in Custody has been regular recent surveys of its use. Three National Police Custody Surveys, conducted in August of 1988, 1992 and 1995, collected information on all persons detained in police custody and held in police cells for any length of time.1 Indigenous people represented 31.8 per cent of all persons held in custody by the police during August 1995, a slight increase over previous years. The fact that during the 1995 survey period nearly one in three people held in police custody in Australia were Aboriginal or Torres Strait Islander shows both the extensive nature of contact between Indigenous people and the police, and the extent to which the loss of liberty of Indigenous people regularly arises from the exercise of police powers. Another way of considering these data is to compare the police custody rates per 100 000 of the Indigenous and non-Indigenous populations. Custody rates based on the 1995 survey were 2228 per 100 000 for Indigenous people, compared to 83 per 100 000 for nonIndigenous people. In other words, Aboriginal and Torres Strait Islander people were 27 times more likely to find themselves in police custody than non-Indigenous people (Cunneen and McDonald 1997a, p. 21). There were significant differences between states and territories in the use of police custody for both Aboriginal and non-Aboriginal people, as shown in Table 1.


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THE CRIMINALISATION OF INDIGENOUS PEOPLE

19

Table 1: Indigenous and non-Indigenous people in police custody, Australia, August 1995 Indigenous State New South Wales Victoria Queensland Western Australia South Australia Tasmania Northern Territory ACT Australia Notes:

non-Indigenous

no

ratea

no

ratea

OverRepresentationb

684 174 1858

850 907 2327

2527 3413 3767

42 77 121

20 12 19

1848 802 43

3911 4841 425

1643 2384 316

99 164 68

39 29 6

1330 26 6765

2889 1473 2228

326 131 14507

261 44 83

11 34 27

a Rate per 100 000 of the population; b Ratio of Indigenous rate to non-Indigenous rate.

Table 1 shows clearly that at the time of the 1995 survey South Australia, Western Australia, the Northern Territory and Queensland were the jurisdictions with the highest rates of custody for Indigenous people. Queensland, Western Australia and the Northern Territory are also significant because they are the jurisdictions with the greatest actual numbers of Indigenous people in custody. Western Australia also had the greatest level of Indigenous overrepresentation. In that state, Aboriginal and Torres Strait Islander people were 39 times more likely to find themselves in police custody than non-Indigenous people. The 1995 Police Custody Survey also collected information on the reasons for the use of police custody. Nationally, the reason for being placed in police custody for 31 per cent of Indigenous people was intoxication in public, irrespective of whether it was a criminal offence or not. Some 15 per cent of non-Indigenous custodies were for the same reason (Carcach and McDonald 1997, p. viii). Indeed, the reason for police custody in a quarter of all cases nationally involving Indigenous people was for protective custody in states and territories where public drunkenness is not a criminal offence. Only 2 per cent of non-Indigenous custodies were for the same reason (Carcach and McDonald 1997, pp. 20–1). It is significant that one in four Aboriginal and Torres Strait Islander people placed in police cells are there for a noncriminal matter. In Western Australia and the Northern Territory,


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where public drunkenness is decriminalised, some 94 per cent and 92 per cent respectively of ‘protective’ custodies for public intoxication involved Aboriginal and Torres Strait Islander people (Carcach and McDonald 1997, p. 31). The major offences for which Indigenous people were placed in custody after being arrested were property offences, public order offences (other than public drunkenness) and public drunkenness (in jurisdictions where it is a criminal offence). The Survey showed that nearly half (48.2 per cent) of all people throughout Australia placed in police cells for public order offences were Aboriginal and Torres Strait Islander (Carcach and McDonald 1997, p. 27). Arrests The National Aboriginal and Torres Strait Islander Sur vey (NATSIS) was conducted in 1994 and asked Indigenous respondents a number of questions relating to police (ABS 1994, 1995). The survey found that 20 per cent of persons aged 13 years and over, and approximately 25 per cent of persons aged between 15 and 44, had been arrested at least once in the five years prior to the survey. Within the male 18–24 years age group almost 47 per cent stated they had been arrested in the previous five years. When broken down to specific jurisdictions, over half of Indigenous males aged 18–24 years in New South Wales, Western Australia and South Australia reported being arrested (ABS 1994, pp. 4–5). Western Australian research has shown that in 1994 alone, ‘nearly 16 per cent of the Aboriginal population were arrested at least once compared to just under 2 per cent of the nonAboriginal population’ (Broadhurst 1997, p. 426). Rearrest statistics for Western Australia between 1984 and 1993 showed that the probability of being rearrested during this period was much higher for Indigenous people than for non-Indigenous people. Some 88 per cent of Aboriginal men were rearrested at least once more during the period, compared to 52 per cent of non-Aboriginal men, while some 85 per cent of Aboriginal women were rearrested at least once, compared to 36 per cent of non-Aboriginal women (Broadhurst 1997, p. 433). These results confirm the findings of the National Police Custody Survey concerning the high rates at which Aboriginals and Torres Strait Islanders come in contact with police. NATSIS also asked about the reasons for the last arrest, the results sug-


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21

gesting that the largest number of arrests were for ‘disorderly conduct’ or drinking in public, with almost one in three people giving this as the reason for arrest. This result is also consistent with the findings from the National Police Custody Survey. In summary, Aboriginal and Torres Strait Islander people are disproportionately likely to be arrested and rearrested. They are also more likely to be placed in police custody, largely for reasons of public order or protective custody.

IMPRISONMENT The number of Indigenous people in police custody is one measure of the degree of criminalisation. Data on imprisonment provides another measure of criminalisation, at the extreme end of the process. Deprivation of liberty is the strongest sanction available in the criminal justice system and is generally regarded as a sanction of last resort.2 All of the available data on the use of imprisonment in Australia consistently indicates the overrepresentation of Aboriginal and Torres Strait Islander people among the prison population. The 1995 National Prison Census showed that 17.1 per cent of the 17 428 prisoners in Australia were Aboriginal and Torres Strait Islander people—at a time when the Australian Bureau of Statistics estimated that Indigenous people comprised approximately 1.3 per cent of the total population of imprisonable age (ATSIC 1997, vol. 1, p. 62). As shown in Table 2, the Indigenous imprisonment rate was 1682 per 100 000 of the population, compared to a non-Indigenous rate of 107 per 100 000—that is, Indigenous people were 15.8 times more likely to find themselves in prison than non-Indigenous people. There are significant jurisdictional differences in the rate of imprisonment of Indigenous people, with Western Australia and South Australia having the highest rates, followed by New South Wales. In Western Australia, one in 38 Indigenous people aged 17 years or more was in prison at the time of the 1995 census. Calculation of age and gender-specific rates are equally alarming. Nationally, one in 20 Indigenous men aged between 19 and 24 years old were in prison on 30 June 1995 (ATSIC 1997, vol. 1, p. 65). Trends in Indigenous imprisonment over the last decade give little cause for optimism. The national picture is one of increasing rates of imprisonment. In 1988 there were 1809 Indigenous people in prison.3 This figure has steadily increased each year. On


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Table 2: Indigenous and non-Indigenous people in prison, Australia, 30 June 1995 Indigenous State New South Wales Victoria Queensland Western Australia South Australia Tasmania Northern Territory ACT Australia Notes:

non-Indigenous

OverRepresentationb

no

ratea

no

ratea

883 128 638

1883 1102 1369

6784 2339 2232

147 68 93

12.8 16.2 14.8

258 714 14

2629 2336 238

1143 1491 230

101 118 66

26.2 22.4 3.6

342 8 2985

1258 717 1682

129 95 14443

138 42 107

9.1 17.0 15.8

a Rate per 100 000 of the population; b Ratio of Indigenous rate to non-Indigenous rate.

30 June 1995 there were 2985 Indigenous prisoners—a national increase of 65 per cent since 1988. The rate of Indigenous imprisonment had increased from 1232 per 100 000 in 1988 to 1682 over the same period (Cunneen and McDonald 1997a, pp. 29–30; ATSIC 1997, pp. 76–7). Although there are significant differences in the rate of Indigenous imprisonment between states and territories (see Table 2), in not one jurisdiction in Australia was there either a lower number of Indigenous people in prison or a lower Indigenous imprisonment rate in 1995 compared to 1988. While Western Australia maintained its position of having the highest rates in Australia throughout the period, both New South Wales and South Australia more than doubled the number of Aboriginal and Torres Strait Islander people in their gaols during the same period—New South Wales by 91 per cent, and South Australia by 87 per cent.4 Victoria followed a similar pattern, although the rate there was much less to begin with. Both the Northern Territory and Queensland successfully lessened the rate of Indigenous imprisonment for short periods during the early 1990s, but in more recent years their levels of imprisonment have increased and now exceed the rates of the late 1980s. Although Australia has gone through a period of increasing use of incarceration overall, increases in Indigenous rates of imprisonment have outstripped increases in the non-Indigenous


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rate. The most recent data shows a further increase of 3 per cent in Indigenous imprisonment between July 1996 and March 1997, while in the same period the rate of non-Indigenous imprisonment fell slightly (ATSIC 1997, vol. 1, pp. 71–3). One result of the rate of Indigenous imprisonment increasing faster than the non-Indigenous rate is that the level of over-representation of Indigenous people has also increased.5

JUVENILE DETENTION There has been concern for well over a decade about the number of Indigenous young people in juvenile detention centres (NISATSIC 1997, p. 494). The Royal Commission into Aboriginal Deaths in Custody noted that, although there were difficulties in obtaining adequate information, there was a perception that the over-representation of Indigenous young people was increasing (Johnston 1991a, vol. 2, p. 263). However, it is only since 1993 that national information has been available on incarcerated youth which identifies whether a young person is Indigenous or not.

Table 3: Indigenous and non-Indigenous young people (10–17 years) in detention, Australia, 30 June 1997 Indigenous

non-Indigenous

State

noa

rateb

noa

rateb

New South Wales Victoria Queensland Western Australia South Australia Tasmania Northern Territory ACT Australia

132 8 71 70 17 7 20 3 328

915 244 475 783 541 343 227 811 583

225 63 55 41 60 15 1 13 473

34 13 15 20 38 27 7 38 24

OverRepresentationc 27.2 19.1 32.8 38.3 14.2 12.7 32.2 21.5 24.7

a For the purposes of standardisation, these numbers do not include young people over the age of 17 years who are held in detention. Some jurisdictions such as New South Wales have significant numbers of Indigenous young people in this age category and could add as much as 20% to the figures cited above; b Rate per 100 000 of the population; c Ratio of Indigenous rate to non-Indigenous rate. Source: Adapted from ATSIC 1997, pp. 90–1.

Notes:


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24


Table 3 shows that at 30 June 1997 some 40.9 per cent of all young people incarcerated were Indigenous. Nationally, Indigenous young people are 24.7 times more likely to find themselves in a juvenile detention centre than non-Indigenous youth. The states with the highest rates of incarceration of Indigenous young people are New South Wales and Western Australia.6 Western Australia also has the highest rate of over-representation. In that state Indigenous young people were 38 times more likely to be incarcerated than non-Indigenous youth. Because national data identifying Aboriginality has only been collected for a relatively short period, it is difficult to discern definitive national trends. However, available data show upward trends in the number of Indigenous youth incarcerated, the rate of incarceration and the level of over-representation since 1993. The number of non-Indigenous youth in detention centres has remained stable between 1993 and 1997. During the same period the number of Indigenous youth incarcerated increased by 55 per cent (ATSIC 1997, pp. 91–3).

EXPLAINING ABORIGINAL OFFENDING PATTERNS AND OVER-REPRESENTATION All the available data paint a picture of a relationship between Indigenous people and the criminal justice system which is profoundly skewed. It is a relationship characterised by high rates of over-representation at the various levels of intervention. It is also a relationship which shows little improvement in recent years. Indeed, if measured by Indigenous adult and juvenile custodial rates the overall situation has significantly deteriorated—despite the development of public policy aimed at remedying the situation. How then do we explain the situation? What role does policing play? Broad-brushed approaches at explanation have included analysis of different treatment by the criminal justice system, different offending patterns and different frequency in offending (LaPrairie 1990; Smandych, Lincoln and Wilson 1995). Some explanations have stressed the role of racism and discrimination within the criminal justice system, others have looked to the similarities with non-Indigenous explanations for criminal behaviour and stressed criminogenic factors deriving from socioeconomic disadvantage (Walker and McDonald 1995). Some recent explanations have looked at the effect of cultural conflict


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25

and spatiality (Broadhurst 1997; Tyler 1998) and the differential impact of criminal justice system policies on Aboriginal people because of their socioeconomic position (LaPrairie 1997). The argument presented here is that there is a need for a conceptualisation which goes beyond singular causal explanations (such as poverty or racism). An adequate explanation involves analysing interconnecting issues, which include historical and structural conditions of colonisation, social and economic marginalisation and systemic racism, while at the same time considering the impact of specific (and sometimes quite localised) practices of criminal justice and related agencies. The factors necessary to explain Aboriginal over-representation include particular offending patterns; the impact of policing; legal factors; judicial decision-making; environmental and locational factors; cultural difference; socioeconomic factors; marginalisation; resistance and the impact of colonisation. By analysing the interconnections between these multiple factors, debates around simplistic dichotomies (such as police behaviour versus Aboriginal criminal offending) can be avoided.7 Taken together these factors indicate a particular relationship between Indigenous people, criminal justice agencies and the nation-state. As indicated in Chapter 1, I have chosen to describe that relationship as neocolonial to stress continuity with colonial processes as well as indicating how those processes have changed with the repeal of overtly racially discriminatory legislation. The major focus of this chapter, however, is to consider how policing interacts with the various factors which cause over-representation.

OFFENDING PATTERNS The simplest explanation for the level of Aboriginal overrepresentation in police custody, courts and prison is that it actually reflects offending levels: so many Aboriginal people are in the criminal justice system because they commit more offences than other people. A connected explanation is that the nature of offences committed by Aboriginal people leads to some level of over-representation. In other words, the offences committed by Aboriginal people might be the types of offences which are more likely to lead to police custody and imprisonment. Over recent years, the Australian Institute of Criminology has prepared data for ATSIC on offending rates8 by Aboriginal and non-Aboriginal people (ATSIC 1995; ATSIC 1997). Indigenous


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26


people are over-represented in virtually all offence categories. The most recent information shows that Indigenous people in prison are most over-represented in offences involving violence, public order, motor vehicle offences and property damage (ATSIC 1997, p. 68). Some 40 per cent of people gaoled in Australia for assaults are Indigenous. There is an array of less serious matters which also lead to Indigenous imprisonment. Nearly one in three people imprisoned for public order offences are Indigenous, and one in four people gaoled for car licence and registration offences are Indigenous (ATSIC 1997, p. 67). A significant limitation of the above information is that it is based on prison census figures, which tends to overemphasise longer-term prisoners and underestimate prisoners serving short sentences. While national information is not available for prison receptions, a study commissioned by the Royal Commission into Aboriginal Deaths in Custody on gaol receptions showed that the level of over-representation of Aboriginal people was higher than census data figures would indicate. Nearly 40 per cent of all Aboriginal people received into prison nationally over a onemonth period were there for defaulting on a fine (Johnston 1991a, vol. 1, p. 208). This suggests that many more Indigenous people are going through the prison system for presumably more minor offences where the court imposed a penalty of a fine in the first instance. The police and courts do not routinely provide information on whether apprehended individuals and defendants are Indigenous or not. Those studies which have considered police charges and court appearances by Aboriginal people have tended to be specific studies, although some jurisdictions (Western Australia and New South Wales) are now routinely providing such information. Three studies of this type have been conducted in relation to Aboriginal young people in South Australia (Gale et al. 1990) and New South Wales (Gallagher and Poletti 1988; Luke and Cunneen 1995), and one which considers Aboriginal adults and juveniles in the Northern Territory (Luke and Cunneen 1998). In addition, the Crime Research Centre in Western Australia and the New South Wales Bureau of Crime Statistics and Research have published statistics on court appearances by Aboriginal and Torres Strait Islander people in those states (Aboriginal Affairs Department and Crime Research Centre 1995, New South Wales Bureau of Crime Statistics and Research 1998). Complexities arise in analysing different offending patterns.


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27

Indigenous people are over-represented for most offences, but there are significant variations between categories. For example, Indigenous people are less likely to be significantly overrepresented in offences for fraud and drugs. Generally, Indigenous people come before the courts for more serious property offences including breaking and entering, and stealing motor vehicles, whereas non-Indigenous people have a greater proportion of more minor property offences such as shoplifting and larceny (Gale et al. 1990, p. 46; Luke and Cunneen 1995, p. 11; Luke and Cunneen 1998, p. 13). Another area of significant difference is the large proportion of Indigenous people who come before the courts on matters of violence. Research in Western Australia, South Australia, New South Wales and the Northern Territory has noted that the level of over-representation is among the greatest for this category of offences. For example, in the Northern Territory in 1996, 79 per cent of serious assault matters involved Indigenous people (Luke and Cunneen 1998, p. 33). While the level of serious assaults is a matter of significant concern, research has also suggested that it is the less serious forms of assault for which Indigenous offenders are most over-represented (Gale et al. 1990, p. 48; Luke and Cunneen 1995, p. 12; Luke and Cunneen 1998, p. 12). Gale et al. have argued that, while there may be a greater degree of violence in Aboriginal communities, the figures ‘may reflect nothing more than the well-documented fact that violence in an Aboriginal community is often an open and public event to which police are readily called’ (Gale et al. 1990, p. 48). A further area which has received only limited research is that a significant proportion of victims in assault matters involving Indigenous people are in fact police officers. Alvarez found that more than one in four assault victims were police officers (Alvarez 1998, p. 117). In these situations the assaults arise out of police intervention, often in public order situations. Leaving aside assault matters, there are significant differences between Indigenous and non-Indigenous people in relation to court appearances for public order offences. In New South Wales, Indigenous young people appeared in court at more than ten times the rate of non-Indigenous youth for these offences (Luke and Cunneen 1995, p. 11). In the Northern Territory, 72 per cent of court appearances for public order offences involved Indigenous people (Luke and Cunneen 1998, p. 33). Information on police arrests also shows the prevalence of public order offences.


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28


In Western Australia, 45 per cent of all arrests for public order offences involved Indigenous people, the largest proportion in any offence category (Harding et al. 1995, p. 43). Aboriginal over-representation in the system is also influenced by prior record and recidivism. Reoffending can result in greater police scrutiny and heavier sentences being handed down in the courts (which have the effect of confirming greater ‘criminality’). Indigenous people are more likely to have been previously imprisoned and to have longer criminal histories than non-Indigenous people. For example, in Western Australia, Indigenous men were three times more likely to have been in prison six to ten times previously (Aboriginal Affairs Department and Crime Research Centre, 1995). A study of Indigenous young people by Beresford and Omaji (1996, p. 92) indicated that 82 per cent of those in juvenile detention centres had been there previously. An analysis of Indigenous and non-Indigenous imprisonment between 1982 and 1993 showed that on average 77 per cent of Aboriginal and Torres Strait Islander prisoners had been previously imprisoned, compared to a non-Indigenous average of 57 per cent (Cunneen and McDonald 1997a, p. 25). All the major studies that have analysed sentencing and prior record have shown that Indigenous people are much more likely to have a criminal history at the time of their current court appearance (Gale et al. 1990; Luke and Cunneen 1995; Luke and Cunneen 1998). For example, a recent study of sentencing in the Northern Territory showed that 40 per cent of non-Indigenous people appearing in court during 1996 had no prior criminal record, compared to only 16 per cent of Indigenous people (Luke and Cunneen 1998, p. 20). The available information on offending patterns shows that Indigenous people are over-represented in most offence categories and are more likely to have a record of previous offending. The actual data, however, are ultimately tied to the agencies which produce, construct and assimilate certain forms of behaviour into identifiable patterns within the criminal justice system. This is not to say that Indigenous people do not commit offences. It is to say, though, that how we come to ‘know’ certain facts is closely connected to the operational concerns of the agencies with responsibility for controlling (and producing knowledge about) crime.


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29

THE IMPACT OF POLICING ON OFFENDING The police role is the one most directly connected to the production of knowledge about offending patterns of individuals or groups. In most instances, Indigenous people would not be before the courts without having been previously charged by the police with an offence. Indeed, for public order offences in particular the police play a direct role in observing and defining the commission of an ‘offence’ and apprehending the offender. In this sense, there is a symbiotic link between policing and offending. Such a link makes nonsense of the notion of discrete criminal behaviour separate from the criminal justice system itself. Following chapters will develop in more detail the specific form of policing in Indigenous communities. For the purposes of the current argument it is important to consider in general terms the way policing interacts with, and shapes, the measures we use for understanding criminal behaviour among Indigenous people. Policing effects on criminal charges One way in which police can influence official figures for offending is through over-policing, particularly in relation to public order offences. The concept of over-policing has been used to describe how Indigenous individuals in particular, and Indigenous communities more generally, are policed in a way that is different from, and more intensive than the policing of non-Indigenous communities. Over-policing can partly explain the over-representation of Indigenous people in the criminal justice system, particularly where offences like assault police, hinder police, resist arrest, offensive behaviour or language and public drunkenness are involved. These charges are often representative of direct police intervention and potential adverse use of police discretion. Except for a notional ‘community’, the victim of the offence is almost invariably the police officer, as shown by numerous studies in most Australian jurisdictions.9 Levels of police intervention can impact on offending figures, particularly where police are the victims of the offences. Thus, the greatest policing impact is likely with less serious offences such as ‘offensive language’, and the impact will be less with the most serious offences such as homicide. Between these two extreme examples exists a variety of policing practices which are likely to influence the extent to which official figures on offending represent the actual occurrence of crime. For example, with property


29

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offences there are a range of factors which limit the extent to which we can discuss the actual level of offending as measured by official statistics. In commenting on the South Australian experience, Gale and her colleagues note, ‘it is not clear to what extent Aborigines actually commit more serious property offences or whether other factors and, in particular, police discretion in charging are at work’ (Gale et al. 1990, p. 46). The authors cite examples of police discretion in charging where less serious offences, such as being unlawfully on premises and larceny, could be substituted for the more serious charge of break, enter and steal. Similarly, Cunneen and Robb (1987, p. 96) found that of all property offences, it was arrests for ‘break and enter with intent to steal’ for which Aboriginal people were most over-represented. In such circumstances there is a range of possible resolutions available to police officers, including the use of diversion or other less serious charges. Similarly, quite basic issues, such as the extent to which offences are reported, can be related to the level of policing and the perceived likelihood of a satisfactory response on the part of the victim. The extent to which offences are reported impact on how we might measure the level of their commission. In addition there is the question of what we might make of police clear-up rates.10 Clear-up rates are notoriously low for offences like motor vehicle theft and break, enter and steal, often little more than 5 per cent (NSW Bureau of Crime Statistics and Research 1990, pp. 19–20). The low clear-up rate means there is considerable room for speculation about what type of crimes are solved and which offenders are caught. The information on the few offenders who are apprehended is particularly susceptible to policing practices, reporting levels in particular areas, and the relative age and sophistication of the offenders. The overrepresentation of Indigenous people in some categories of offences may tell us as much about detection by police as about the frequency with which crimes are committed. The use of police discretion Policing is an activity characterised by high levels of ‘discretion’, which is routinely used even by the most junior members of the organisation and often with little supervision. There is considerable evidence from various inquiries and research literature which demonstrates that police intervene in situations, particularly in


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relation to street offences involving Indigenous people, in ways that are unnecessary and sometimes provocative (ADB 1982; ICJ 1990; HREOC 1991; Wootten 1991a; Amnesty International 1993; Cunneen and McDonald 1997a). Beyond the available observational evidence, it is difficult to demonstrate that police routinely use their discretion to intervene in situations involving Aboriginal people where the same behaviour or situation would be ignored if it involved non-Aboriginal people. However, the substantial contemporary and historical accounts presented in a range of forums, as well as other documentation on adverse police decisions after intervention, lend substantial weight to the conclusion that discretion is adversely used in this regard. After police intervene in a situation, a number of discretionary decisions are made depending on the age of the person and the reason for intervention. These include decisions about whether to place a person in custody, whether to deal with the situation informally or to arrest or summons the person for the alleged offence, whether to administer a caution rather than charge the person if they are a juvenile, whether to grant bail to the person and what bail conditions should be imposed, and so on. In relation to juveniles, police make ‘negative’ decisions concerning Indigenous young people which, independent of the reason for apprehension, have the effect of harsher decisions being made at points where discretion is available (Gale et al. 1990; Luke and Cunneen 1995; Aboriginal Affairs Department and Crime Research Centre 1996). When dealing with both adults and juveniles, police have the discretion to proceed by either arrest and charge or the use of a summons. Summons is a less intrusive way of ensuring attendance at court and does not require being detained, brought to the police station to be fingerprinted and having bail determined. All the available evidence indicates that Indigenous people are significantly less likely to be proceeded against by way of summons than non-Indigenous people. For instance, in the Northern Territory, 42 per cent of non-Aboriginal people appeared in court by way of summons compared to 29 per cent of Aboriginal people during 1996 (Luke and Cunneen 1998, p. 19). After police have decided to intervene and charge a person with a criminal offence, discretion is applied to the number of charges which are laid. Over the years there have been many references to what appear to be unnecessary numbers of charges laid against Aboriginal defendants arising out of single incidents


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(Wootten 1991b; ICJ 1990; Amnesty International 1993). These complaints are often associated with public order offences and the use of what has colloquially been referred to as the ‘trifecta’: charges for offensive behaviour/language, resist arrest and assault police. Police decision-making and the use of discretion can have an enormous impact on the number of Indigenous people appearing before the courts and the nature of the offences with which they are charged. The discretions available to police in terms of whether to charge a person with a criminal offence, which charge and how many charges should be laid, as well as subsequent procedural decisions in relation to arrest or summons, the use of custody and bail and so on, all fundamentally mould the apparent criminality of the person detained. The public expression of criminality confirmed in the courtroom occurs at the end of a long social process. In the case of Indigenous people we know from the evidence that police decision-making invariably gives rise to the use of the more punitive options available.

THE LAW AND POLICING Police intervention does not occur in a legal vacuum, and at least on the face of it police are there to enforce the law. For a significant part of the European history of Australia, police have been required to enforce legislation which denied basic rights and protections to Aboriginal and Torres Strait Islander people. As discussed in more detail in Chapter 3, colonial legislation embodied in various Protection Acts was used to exert control over Aboriginal people and communities in a racially discriminatory manner. While laws based on overt racial discrimination have been repealed, the impact of law and its interpretation by police as they conduct their routine activities may still lead to profound, even if indirect, discrimination. Legislation covering public order is one example. In relation to recent legislation covering public drunkenness, in both its criminalised form in Victoria, Queensland and Tasmania, and its decriminalised form in South Australia, New South Wales, Western Australia and the Northern Territory, there has been concern that the laws have been used to maintain high levels of police intervention and custody. Some criminal laws appear to be applied only to Indigenous people. For instance, in north-western New South Wales offences of riot and


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affray and various local government ordinances were used exclusively in relation to Aboriginal people (Cunneen and Robb 1987, pp. 221–2). There is widespread concern over police use of charges under various Summary Offences or Police Offences Acts with provisions for offensive behaviour and language. This type of legislation has been strengthened in recent years with increased penalties and rising numbers of arrests (Cunneen and McDonald 1997a, pp. 114–16). Police may also use alternatives to the criminal law, such as welfare provisions, in the policing of Indigenous young people. In Western Australia, for example, it has been claimed that provisions providing for the protection of children are routinely used to remove Indigenous young people from the streets and to place them in custody (NISATSIC 1997, p. 511). Similar provisions exist in New South Wales in the Children (Protection and Parental Responsibility) Act 1997. Complaints about the abuse of police powers under existing legislation are frequent, particularly in areas such as stopping and questioning Indigenous adults and young people (NISATSIC 1997, p. 512) or in the abuse of both search warrants and commitment warrants as a way of harassing individuals (Cunneen and McDonald 1997a, pp. 62), or in some cases whole communities (Cunneen 1990b; NSW Office of the Ombudsman 1991). The legislation covering the right to bail for a person charged with a criminal offence varies between different Australian jurisdictions. However, police determine in the first instance whether a person will receive bail and what conditions might be attached to the granting of bail. This gives rise to a number of issues. First, are Aboriginal people more likely to be refused bail than nonAboriginal people? Second, are the conditions attached to bail unnecessarily onerous for Aboriginal people? Third, the need for a bail determination demonstrates the interconnectedness between adverse decisions by police. The police preference for proceeding by way of arrest and charge rather than using summons creates the need for bail in the first place. The Royal Commission into Aboriginal Deaths in Custody noted that the available evidence shows that police are more likely to refuse bail to an Aboriginal person than to a non-Aboriginal person in similar circumstances (Wootten 1991a, p. 353). Recent research has indicated widespread concern within Indigenous organisations that bail is determined in a discriminatory manner. Some of the discrimination can arise indirectly: Aboriginal and Torres Strait


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Islander people are more likely to be unemployed and homeless and as a consequence are considered to be at greater risk of failing to appear in court (Cunneen and McDonald 1997a, p. 122).

JUDICIAL DECISION-MAKING Ultimately it is magistrates and judges who, within the constraints of sentencing legislation, impose sentences on Indigenous people who are brought before the courts. There has been considerable argument about whether those sentences are equitable in comparison to the sentences received by non-Indigenous people. Indigenous people are more likely than others to be sentenced to imprisonment. For example, in Western Australia it was found that magistrates were six times more likely to sentence Aboriginal adults to imprisonment than non-Aboriginal people (Harding et al. 1995, p. 69). In the absence of further details on offence seriousness and prior record, the researchers felt constrained in drawing any conclusions from these figures. Some commentators have argued that there is no adverse discrimination by the courts against Aboriginal people, if prior record is taken into account. Walker, for example, argues that ‘the Courts often refer explicitly to prior record as a reason for remanding in custody and for greater severity in sentencing’ (1987, pp. 110–11). Although Indigenous prisoners were more likely to have been previously imprisoned, the average length of sentence for an Indigenous prisoner was 42.6 months compared to 74.9 months for a nonAboriginal prisoner. Walker argues that the shorter average prison sentences for Aborigines ‘cannot be entirely attributed to different types of offences committed by Aboriginal people’, nor to ‘the relative youthfulness of Aboriginal offenders or to any differences in sentencing practices between States’ (1987, p. 111). He concluded ‘that the courts cannot be held to blame for the high rates of Aboriginal imprisonment. On the contrary, they appear to be particularly lenient to Aboriginal offenders, especially when one considers that prior imprisonment record is regarded as a key factor in sentencing, tending towards longer sentences’ (1987, p. 114). More recently, Walker and McDonald (1995) have argued that the results of the 1992 prison census show that generally Aboriginal offenders serve shorter terms of imprisonment than non-Indigenous people for a range of offences. They suggest that ‘courts may have a lenient view of Indigenous offenders, biasing


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sentence lengths in their favour to avoid accusations of racial biases in sentencing’ (1995, p. 4). However, there are serious flaws in this argument. There is no analysis of why such disproportionate numbers of Indigenous people are brought before the courts in the first place, the extent to which alternatives to prison are used for Indigenous and non-Indigenous offenders compared to imprisonment, or the relative seriousness of the offences beyond broad categories such as ‘fraud’ or ‘drugs’.11 Much of the problem with this type of analysis derives from the methodology of using prison statistics to analyse comparative sentencing decisions. A simple comparison between the length of prison sentences for Indigenous and non-Indigenous people provides us with no comparative information on their passage through the criminal justice system, nor with the decisions that are made at each stage. In particular, the effect of police practices in relation to targeting, arrest and bail all impact on the crucial question of why Aboriginal people appear before the courts in the first place and how they in fact obtain criminal records. The end result may be an ‘accumulation of disadvantage’ in the system deriving from the original police decision to arrest (Gale et al. 1990; Luke and Cunneen 1995). A recent study of sentencing in the Northern Territory found that courts were using gaol sentences more frequently for Aboriginal people and at an earlier stage in their offending history, and that they were more likely to have a prior offending history than non-Aboriginal people. However, when Aboriginal and nonAboriginal offenders were matched by prior record and offence, a greater proportion of Aboriginal people were sentenced to imprisonment—irrespective of the offence or the level of prior record. The study also found that while Aboriginal people received shorter imprisonment sentences than non-Aboriginal people, they were less likely to receive the benefit of non-custodial sentencing options (Luke and Cunneen 1998). Thus a picture emerges of Aboriginal people receiving less non-custodial sentencing options and more frequent short-term gaol sentences than non-Aboriginal people. In regard to juvenile offenders, Aboriginal young people have a greater chance of being sent to an institution than do nonAboriginal offenders (Gale et al. 1990, p. 107; Broadhurst, Ferrante and Susilo 1991, p. 74; Luke and Cunneen 1995). South Australian research showed that differences in penalties remained even when specific charges were analysed. Thus, twice as many


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Aboriginal young people compared to non-Indigenous young people were sentenced to detention for break, enter and steal or for assault, for example. It was not the specific offence which determined the penalty (Gale et al. 1990, p. 109). The major determinant influencing penalty was the young person’s prior offending record. Unemployment and family structure were also relevant, with those who were unemployed and living in a nonnuclear family situation being more likely to receive a custodial sentence. Research in New South Wales has reached similar conclusions in relation to the importance of prior criminal record (Luke and Cunneen 1995). A New South Wales Judicial Commission report confirmed that Indigenous and non-Indigenous youth received the same number and length of detention orders when factors including offence, prior record, bail, employment and family structure were accounted for (Gallagher and Poletti 1998, p. 17). The major import of this discussion on sentencing in relation to the question of policing is that sentencing decisions cannot be seen as discrete from policing practices. Police decisions obviously affect the number and type of criminal charges on which the court makes a sentencing decision. Policing also impacts on whether the person arrives in court in custody, on bail or by way of summons. Besides the actual offence, a prime determinant of sentencing outcome is prior record, which itself is an outcome of the social and political processes which involve police decision-making. Policing practices partly shape sentencing, particularly where prior record becomes a factor in imposing more punitive sentencing outcomes.

SPATIAL FACTORS: ENVIRONMENT AND LOCATION The shape of criminal behaviour—its nature and size—is also influenced by a range of spatial factors which lie outside both individual influence and the immediate responses of the criminal justice system. Environmental opportunities can structure criminal activity. Environment and location can also impact on the response by the community and the police. For example, Gale and her colleagues, in their study of Aboriginal young people and juvenile justice, argued that even if it could be shown that Aboriginal people do commit more serious property offences, this would not demonstrate any greater inherent ‘criminality’ because environmental opportunities and


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pressures influence the nature of property crime. In particular, urban–rural differences structure opportunities and pressures differently (Gale et al. 1990). Simple theft and shoplifting are primarily urban offences, particularly associated with large shopping complexes. The opportunities for these types of offences are considerably constrained in the environment of small rural communities. Similarly, there is increased likelihood of being detected either breaking into or attempting to break into a dwelling in a small country town or remote community. In these locations offenders are often easily identified by the community and the police. Location also has a bearing on the likelihood of coming into contact with the criminal justice system as well as possible responses. While the results of research are somewhat conflicting, a number of criminologists, geographers and sociologists have considered the spatial dimension of Indigenous contact with the criminal justice system. Gale et al. have shown that there are ‘enormous geographical variations in the position of young Aboriginal people before the law’ in South Australia (1990, p. 36). Broadhurst (1997) has argued that the highest rates of Indigenous imprisonment are in the ‘frontier’ areas like the Northern Territory and Western Australia and the lowest rates are in settled states such as Victoria and Tasmania. A recent study in the Northern Territory showed Aboriginal people living in major centres were four times more likely to appear in court than those living in remote areas (Luke and Cunneen 1998, p. 21). The processes of colonisation significantly impacted on the human geography of Aboriginal and Torres Strait Islander communities. While this issue will be examined later, it is worth noting that many Indigenous communities in Australia have arisen out of the forced relocation of Aboriginal and Torres Strait Islander people into specific areas during the period of ‘protection’. This movement has given rise to its own set of problems, which may manifest themselves in social conflict and disagreements over access to scarce resources. Some of the recent literature in the area urges a consideration of the diverse experiences of Indigenous people, both in terms of understanding the nature of offending (Broadhurst 1997; LaPrairie 1997) and in terms of the development of policy (Cunneen 1997).


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CULTURAL DIFFERENCE Cultural difference can lead to criminalisation for a number of reasons. First, Indigenous people may have difficulties based on language and culture during police interrogation and in courtroom procedures. Second, Aboriginal people’s cultural practices may lead to criminalisation. Third, the attacks on Aboriginal culture through various colonial policies over many decades have weakened certain social control mechanisms within some communities, causing problems of disruptive and criminal behaviour. The vulnerability of Aboriginal people when faced with police interrogation techniques has been noted in several government inquiries.12 Some of the disabilities Aboriginal people face in front of the courts as a result of language and cultural differences have been explored by Eades (1995a, 1995b). For instance, cultural difference expressed through body language can be falsely interpreted as implying guilt. Cross-examination and interrogation techniques can lead to gratuitous concurrence, which may be interpreted as admission of guilt (Eades 1995a). Failure to provide interpreters is still a major problem in many parts of Australia and affects both police and court stages of intervention (Cunneen and McDonald 1997a). There is now a significant body of literature which outlines the difficulties which face Indigenous people in the formal legal process (Eades 1995b; Criminal Justice Commission 1996; Mildren 1997), difficulties which derive from both cultural and communicative (verbal and non-verbal) differences and can also include medical conditions (such as middle ear infection leading to hearing loss). They are part of the structural parameters which prevent Indigenous people receiving fair treatment in the non-Indigenous legal process, and at times can lead to significant miscarriages of justice (Criminal Justice Commission 1996). Distinct cultural patterns may also lead to intervention and eventual criminalisation. One area already referred to has been the policing of activities which occur in public places. Cultural differences in this area arise where Aboriginal social activities are more likely to lead to visibility and surveillance by police. Cultural differences in child-rearing practices can also lead to the intervention of nonIndigenous welfare and juvenile justice agencies, including police. Indigenous societies in Australia had, and continue to have, very different cultural notions in relation to childhood and young people compared to non-Indigenous groups. Generally there is not the


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same separation or exclusion of children from the adult world. Responsibility for children and young people is allocated through the kinship system and the wider community (Sansom and Baines 1988; NISATSIC 1997; Watson 1989). A critical question is whether non-Indigenous criminal justice institutions simply fail to recognise and value Indigenous methods of social organisation or whether they in effect treat cultural difference as a social pathology and criminalise it. For example, from the late 1970s there has been considerable criticism of the ethnocentric nature of social background reports and of the psychological tests administered to Aboriginal young people coming under state supervision. The reports gave free rein to the expression of prejudices in relation to Aboriginal culture, family life and child-rearing practices through descriptions of ‘dysfunctional families’ and ‘bad home environments’ (Milne and Munro 1981; Gale et al. 1990, p. 102; Carrington 1993, p. 48). Apparently neutral means of assessment such as IQ and psychological testing can reflect the norms of the dominant culture and provide apparently ‘scientific’ evidence of maladjusted individuals or families. There have been similar criticisms of the social assumptions which can underlie the reports of probation and parole officers which are presented to the courts (Ozols 1994, p. 3). Colonisation has also wrought changes in the social patterns of Aboriginal life by wholesale disruption to communities through expropriation of the land, concentration of differing kinship groups on reserves and through specific policies such as the removal of Aboriginal children and young people. Colonial processes have attacked Indigenous mechanisms of governance and social control. For example, the Royal Commission into Aboriginal Deaths in Custody has noted in detail the extent to which disruption, intervention and institutionalisation has left Aboriginal and Torres Strait Islander families facing severe difficulties with their children and young people. The historical legacy of colonialism is that families and communities now cannot call on the social and economic resources necessary to resolve these problems. It is important to recognise that since much of colonial policy was about undermining Aboriginal authority and methods of social organisation, it is hardly surprising that now, in some communities, parental authority and traditional responsibilities have been rendered less effective. Finally, it is important to recognise the cultural differences between Indigenous communities in Australia. While the most


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obvious are the significant cultural differences between Aboriginal people and Torres Strait Islanders, there are obvious cultural and linguistic differences between Indigenous peoples throughout Australia. Some of these differences derive from pre-colonial Australia, while others have arisen as a result of the colonial experience. These differences are often poorly understood and can lead to a simplistic approach to criminal justice policies (Cunneen 1997; NISATSIC 1997).

SOCIOECONOMIC FACTORS A person’s position in the social and economic class structure of society has a direct impact on their likelihood of ending up in the criminal justice system. The disadvantaged position of Aboriginal people in Australia has been well documented, not least by the Royal Commission into Aboriginal Deaths in Custody, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families and various ATSIC reports (1995a, 1997). Numerous studies have indicated the links between the socioeconomic position of Aboriginal people and their level of offending, including Cunneen and Robb (1987), Devery (1991) and Beresford and Omaji (1996). A recent Australian Institute of Criminology study has also noted the importance of considering the links between offending levels (as measured by imprisonment figures) and employment and educational disadvantage (Walker and McDonald 1995). The authors identify the association of social problems such as crime with unemployment and income inequalities. They suggest that the reason crime is so problematic in Aboriginal communities is due to the lack of employment, educational and other opportunities, and argue that social policies aimed at improving these conditions are likely to have a significant effect on the reduction of imprisonment rates (p. 6). More recently Hunter and Borland (1999) found that the high rate of arrest of Aboriginal people, often for non-violent alcoholrelated offences, is one of the major factors behind low rates of employment. Marginalisation Another way of considering socioeconomic disadvantage and some offending patterns by Aboriginal people is through the notion of


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marginalisation. Marginalisation in this context is taken to mean separation and alienation from work relations, family and other social relations which bind young people and adults to communities and give value and esteem to people’s lives. The results of marginalisation include self-destructive behaviour (including substance abuse), increased likelihood of violence among family members and the development of strategies for survival which include crime. Marginalisation and its relationship to crime is clearly not a phenomenon particular to Aboriginal people. However, because of the history of dispossession, colonial policy and racism in Australia it can be argued that marginalisation impacts greatly on Aboriginal and Torres Strait Islander people, who show very poorly on all social indicator scales in terms of health, housing, education, unemployment and welfare dependency. There have been many studies which show that poverty is associated with detected crime and police intervention. In South Australia it was found that, of young people who had left school and were apprehended by police, some 91 per cent of Aboriginal young people, compared to 61 per cent of non-Aboriginal young people, were unemployed (Gale et al. 1990, p. 56). Other social factors which correlate with poverty, such as single-parent families and residential location, were also more prevalent among Aboriginal young people who were apprehended by police (Gale et al. 1990, pp. 57–8; see also Devery 1991). The Royal Commission into Aboriginal Deaths in Custody argued that part of the high level of property offences committed by Aboriginal youth is indicative of the extent of poverty. At the most basic level some offences are committed by young people because of their need for food (Johnston 1991a, p. 287). Marginalisation is also important in understanding the extent of self-destructive behaviour and its relationship to offending. Some Aboriginal communities have problems with substance abuse by young people and adults, including alcohol abuse and petrol sniffing. Substance abuse can be associated with offending in many ways, from the commission of break and enters to obtain alcohol or petrol to the association of alcohol abuse with violence. The Royal Commission into Aboriginal Deaths in Custody has also noted the effect peer group pressure and boredom has on offending. This would appear to be a particular problem in remote communities and is clearly related to marginalisation where juvenile and young adults have no opportunity for employment, for


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formal education in the community beyond junior high school or for extended social activities (Johnston 1991a, pp. 289–90). The notion of marginalisation and economic disadvantage must always be seen within the context of colonialism, dispossession and the destruction of an Aboriginal economic base. As many Indigenous people have stated, their people are not simply a disadvantaged minority group in Australia: their current socioeconomic status derives from a specific history of colonisation. In other words, an overly simplistic application of socioeconomic (or class) analysis prevents an understanding of the distinct historical formation of Indigenous people within a dominant (and colonising) society.13

RESISTANCE The concept of resistance may also play some role in explaining the patterns of Aboriginal over-representation in crime figures. Some of the offences committed by Aboriginal people are specifically aimed at non-Indigenous targets or as responses and resistances to non-Indigenous institutions and authorities. A number of researchers have commented upon the fact that some property offences, vandalism, assaults or behaviour classified offensive can be understood as a form of resistance (Brady 1985; Cunneen and Robb 1987; Cowlishaw 1988; Hutchings 1995). Brady notes that in the Aboriginal community where she did her research, the break-ins, by young people in particular, were directed at school buildings, non-Aboriginal staff houses and the store (Brady 1985, p. 116). Aboriginal organisations have also noted that resistance has become part of Aboriginal culture, with a particular effect on juveniles. ‘What has been described as [juvenile] delinquency could also be regarded as acts of individual defiance. The scale and nature of Aboriginal children’s conflict with ‘‘authority’’ is reflective of a historical defiance’ (D’Souza 1990, p. 5). In some cases, public disorder may erupt in anti-police riots as a direct response to harassment (Cunneen and Robb 1987; Goodall 1990b). Other patterns of offending which might be considered under the notion of resistance relate to defiance of court orders. Goodall has noted that, historically, the tactics which were used against welfare and protection board intervention included passive resistance, non-cooperation and absconding (cited in Johnston 1991a, p. 77). Today these types of offences are typically grouped under the category of ‘justice’ offences. It is important to consider the


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extent to which breaches of court orders might reflect a refusal to comply with what are considered to be unjust levels of intervention and control. Similarly, high levels of fine default may reflect not just poverty (the inability to pay a fine) but also resistance to the idea of paying a fine deriving from an unjust conviction.

THEORISING THE IMPACT OF POLICING ON CRIME FIGURES The role of police specifically in implementing colonial policy will be discussed more fully in Chapter 3. It is important to note in the present context, however, that the colonial project involved a diverse range of strategies, including the murder of Indigenous people, dispersal away from traditionally owned lands and the destruction of an economic base in many parts of Australia, concentration of diverse groups in government and mission-run reserves and the removal of Aboriginal children from communities. The manifold effects of these policies were well documented by the Royal Commission into Aboriginal Deaths in Custody. The impact of policies such as child removal was noted in the investigations into various deaths, as well as other tangible outcomes of colonial policy such as the enforced ‘invisibility’ of Aboriginal people moved away from white communities and the policing tactics which were employed to achieve those ends. More recently the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997) examined the effects of forced removals. It is worth clarifying in a specific way the criminogenic effects generated by this particular colonial policy. It led to the destabilisation and/or destruction of kinship networks and the destabilisation of protective and caring mechanisms within Indigenous culture. It led to the social and legal construction of Aboriginal child-rearing as socially incompetent and of Aboriginal culture as worthless. It led to a legal regime without procedural justice which has been defined as genocide within international law. It led to the economic and sexual exploitation of Aboriginal children. It has contributed to a culture of resistance within Indigenous communities to welfare and criminal justice authorities. It has contributed to the generation of higher levels of mental illness, psychiatric disorders and alcohol and substance abuse among those removed. It has contributed to the creation of a new generation of Aboriginal adults ill-equipped for parenting.


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It would of course be an impossible task to ‘measure’ the impact of a particular colonial policy such as child removal on contemporary Indigenous crime figures. Yet we know through the traumatic effects of such policies on individuals, families and communities that the impact has indeed been great. We gain some glimpse of this in data which consistently shows the greater numbers of the stolen generation among Indigenous arrests and deaths in custody. At one level the concept of ‘colonialism’ provides a highly generalised level of explanation for understanding Indigenous criminal offending but as the example of the impact of the forced removal of Indigenous children shows, colonial policy can be contextualised with concrete examples and specific criminogenic effects. A sophisticated approach to explaining the level of overrepresentation of Indigenous people in official criminal statistics is needed. It is not accurate to suggest that Indigenous people do not commit offences and are merely imprisoned as the result of a racist criminal justice system. Nor is it the case that the criminal justice system is simply a neutral institution enforcing an impartial legal system. At the broadest level the legal system has been informed by a colonial project with a specific regime for Indigenous people. In more prosaic terms, the police (as part of the legal system) utilise their discretion in ways which have a negative impact on Indigenous people. The level of policing and the nature of police intervention impact directly on the extent to which Aboriginal and Torres Strait Islander people appear in the criminal justice system. In addition, the economic and social conditions under which Indigenous people have been forced to live as a result of dispossession and marginalisation are criminogenic. These explanations are not mutually exclusive and, if framed in either/or categorisations, fail to capture the complexities of social reality. For example, if we consider the comparatively large number of motor vehicle registration and licence offences for which Aboriginal people are imprisoned, we might consider the complex interaction of environmental considerations, the effects of unemployment and poverty, and the extent of discriminatory policing practices. Environmental considerations are important, because Aboriginal people often live in rural and remote areas poorly serviced by public transport and are therefore dependent on a motor vehicle in a way that the ‘average’ non-Aboriginal person is not. Unemployment and low income affect the ability both to pay for registration and to own vehicles more likely to be


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classified roadworthy, and negatively impact on the ability to pay for any traffic fines. Failure to pay traffic fines results in licence cancellation. Discriminatory police practices may increase the likelihood of detection of unlicensed drivers through selective procedures of stopping Aboriginal drivers. A similar explanation could be utilised for the comparatively large number of break and enters for which Aboriginal young people appear in court. When a small group of Aboriginal children is apprehended and appears in court in Brewarrina, New South Wales, say, for breaking into a house and stealing food, a satisfactory explanation for that event must be one that recognises the economic and social outcomes of colonisation and marginalisation, the role of environmental opportunities for crime, the increased likelihood of detection as a result of police numbers and surveillance in small and predominantly Aboriginal communities, and the increased likelihood of an adverse police discretionary decision to charge (rather than caution) an Aboriginal young person in the first instance. In the end, measures of ‘crime’ need to be understood as social, political and historical artefacts. Their ‘truth’ is certainly dependent on the regimes of which they are a product. In the case of Indigenous people the regime has been particularly harsh, the empirical measures showing the deep levels of their criminalisation in contemporary Australian society. Yet to see that as merely a reflection of offending levels in Indigenous communities would indeed be to mistake the outcome of social processes for a simple and unambiguous ‘fact’. Crime as a social artefact needs to be continually deconstructed—it has no essential inner core other than the purely formal requirement of legal transgression. There is little doubt that policing shapes the measuring of crime, and police decision-making can significantly impact on what we ‘know’ as offenders and offences. In the specific case of Indigenous people in Australia we can expect an even greater shaping of offending levels through police practices, given their contemporary role in Indigenous communities and their historic role in colonial policy.


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3 The nature of colonial policing THE NATURE OF COLONIAL POLICING

Rather than simply present a narrative history of the use of police in the dispossession and control of Indigenous people in Australia, what I intend to do in this chapter is to consider conceptually the features of colonial policing. Through such an analysis it is possible to consider both the continuities and the changes which have occurred in the relationship between Indigenous people and the police. The development of narrative histories of policing Indigenous people in Australia remains an important task—one which is far beyond the ambit of this book. Despite some recent research, how much do we know, for example, of the history of the operations of the Native Mounted Police in Queensland, or more specifically against particular Indigenous nations? Or the work of police in the administration of particular ‘protection’ policies, from the removal of children to the ‘relocation’ of communities? Historically, how did police administrators and officers view their participation in this type of police work? Much of the history of the interaction between police and Indigenous people is poorly documented. The use of the police (including the native police) in the frontier period was largely devoid of either judicial or public review. Similarly, the administrative functions of the police in enforcing the regulations established within protection legislation almost by definition did not involve scrutiny by the court (Finnane 1994, pp. 124–5). What research and writing on police and Indigenous relations we have tends to be either scattered, relating to particular jurisdictions in particular periods (Fels 1988; Rosser 1990; Milliss 1994), or part of more general histories on either the police (Finnane 1994), the role of law in Australian history (Neal 1991; Kercher 1995) or the history of particular government policy in relation to Aboriginal people (Haebich 1992). However, the existing research does show that it is imperative

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to understand the development of policing in Australia within the context of colonial expansion. The particular requirements of the colony imposed models of policing substantially different from those which developed in the Imperial centre. At the most general level, the material needs of the colony were centrally focused around land. Land was the major means of production during the nineteenth century in Australia, landowners and squatters requiring cheap grazing land, a supply of labour and either the removal or the control of the Aboriginal traditional owners. The importance of the developing pastoral economy influenced the nature and style of policing, at least during the first half of the nineteenth century in south-east Australia. The process of ‘squatting’ was essentially the illegal occupation of vast areas of land which were the homelands of Indigenous peoples.1 Colonial governments eventually legitimised the occupation of the land through the development of a system of ‘leasehold’, under which squatters could legally lease the Crown land they had already occupied in exchange for a small rent. It should not be surprising then, that ‘one of the largest land grabs in history’ (Kercher 1995, p. 7) would have particular implications for the development of policing and the relationship of Indigenous people to the state. Indeed, there was a direct link between the legal recognition of the land grab by squatters and the development of specific forms of policing. The Crown Lands Unauthorized Occupation Act 1839 (NSW) established a system of occupation licences which were the precursors of pastoral leases. The same legislation also established the border police force for the ‘mutual protection’ of squatters and Indigenous people. By the mid-1840s the law had changed to enable the Crown to grant pastoral leases outside of settled districts, the effect of which was to transform land holdings in Australia. Pastoral leases were a new form of land tenure, not inherited from England, and reflected the specific demands of the squatters for some form of security of title (Wik Peoples v State of Queensland, Toohey J at 171–3). While pastoral leases developed as a new legal form of tenure to provide some security, the border police and later the native police were there to provide a level of personal security for those outside the boundaries of settlement. Both the legal form of tenure and the particular policing institution developed in the specific context of the colonial setting. The specific conditions in each colony at the time of colonisation impacted on the development of the police. The process of colonisation and dispossession occurred at different times in


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different parts of the continent. However, it is clear that the nature of Indigenous resistance in Australia was influential in the development of policing institutions. For example, in New South Wales mounted police were established in 1825 for the purpose of controlling bushranging and Aboriginal resistance, and in Western Australia mounted police were established in the 1830s to provide protection to settlers (Johnston 1991a, vol. 2, p. 22). The attempt to incorporate Aboriginal people into policing strategies through services such as the native police is also indicative of the influence of Indigenous people on policing institutions. In some jurisdictions like Victoria, the native police were seen as essentially a ‘civilising’ force (Fels 1988). However, for the most part, as in Queensland and Western Australia, they were involved in punitive control. Finnane has argued that Indigenous resistance was as important as convictism in the development of specific Australian policing institutions (1994, pp. 25–6). Conflict between settlers and Indigenous people at the frontier of settlement increased the likelihood of a centralised approach to policing by colonial governments who were required to protect settlers and, increasingly from the 1830s, under some obligation and scrutiny from the Imperial Government, to protect Indigenous people. The border police and native police were of little use in protecting Indigenous people. The development of these centralised forces was in contrast to the failure to develop localised police under the control of the settler community. Ironically, it was only in Tasmania that localised police constabularies remained until the end of the century and this may well have been related to the early conclusion of Indigenous/settler hostilities during the period of the Black War in the late 1820s and early 1830s (Finnane 1994, p. 25; Reynolds 1995). The organisation of policing along state-wide jurisdictions rather than locally is thus related to the history of colonisation, including Indigenous resistance to the appropriation of the land, the need for a particular type of economic development within the colonies and the development of colonial self-government. During the mid-nineteenth century, colonial legislation centralised and reorganised policing into a hierarchical and bureaucratic structure within the state under the control of a single officer. There was little or no responsibility for policing at the community level. Their role in the control and regulation of Aboriginal people distinguished the development of police in Australia from


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their origins in models adapted from England and Ireland. Police duties in relation to Indigenous people were also distinguishable from their duties relating to policing public order and detection of crime (Finnane 1994, pp. 111–12). Colonial processes in Australia not only led to a particular institutional form of policing, they were also to have a profound influence on how Indigenous people came to regard the police. As has been widely noted, historically the police have acted as the most consistent point of Aboriginal contact with colonial power.2 To a certain extent the historical memory of contact with the police and ‘the law’ provides a framework of understanding for Aboriginal people about current relations with police, as well as informing police views about Aboriginal people. In this sense, the colonial process not only led to policing institutions and practices, it also developed particular sets of ideas about both police and Indigenous people.3 What then were the essential features of policing Indigenous people from the period of initial colonisation through to the demise of overtly racist legislation in the 1960s? I have broadly divided the discussion between the role of the police in the violent dispossession of Aboriginal people from their land, and their later function as ‘protectors’. Finally, I have briefly sketched the changing role of police with the introduction of assimilation policies. Within each section I have drawn out the key features which I see as structuring the particular police role.

DISPOSSESSION AND WAR: POLICE AS MILITARY Colonial police participated in the war against Indigenous people and were directly engaged in violent repression and colonial expansion. Police on the pastoral frontiers were essentially conducting duties of a military nature, being called upon to carry out functions which in other colonial countries such as the United States and New Zealand had been conducted by the military. The frontier war utilised police in a role far removed from that of the village constable. ‘The police officer was not primarily a member of the local community, but a member of a colonial police force. It was a police role superimposed on aggressively expanding communities rather than a role which grew organically out of the local community’ (Foley 1984, p. 161). It was recognised at the time that specialist units such as the Native Mounted Police were acting to quell resistance in the same way as British troops in


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other parts of the Empire. Governor Bowen reminded the Imperial authorities that Queenslanders paid and organised for their own protection from natives, unlike the situation in either South Africa or New Zealand where there was a requirement to maintain British troops (Reynolds 1990, pp. 56–7; Reynolds 1993, pp. 58–9). In Western Australia and Queensland, authorities spoke of police ‘teaching the blacks a lesson’ and ‘dealing out a fearful punishment’ as if this was within the normal duties of a police force (McGregor 1993, p. 63). In many areas police were not maintaining law and order within the confines of the criminal law, but rather were extending the reach of British jurisdiction over resisting Indigenous communities. For many Aboriginal people the first contact they had with the police was with a paramilitary force of dispossession, dispensing summary justice and on some occasions involved in the indiscriminate massacre of clan and tribal groups. The lack of records means that we will never know how many Indigenous people died as a result of punitive police patrols and the operations designed to pacify different parts of the continent. However, there was never any doubt at the time that the Indigenous people and the colonisers were indeed at war during the late eighteenth and early nineteenth centuries in parts of south-eastern Australia (Goodall 1996), in Tasmania during the 1820s and early 1830s (Reynolds 1995), and in Queensland during the mid- to later nineteenth century (Reynolds 1993; Moore 1993). As late as the end of the nineteenth century senior public servants seriously described events in the terms of a war of extermination. The following quote is drawn from correspondence between the Western Australian under-secretary and the premier of Western Australia in July 1895: There can be no doubt from these frequent [police] reports that a war of extermination in effect is being waged against these unfortunate blacks in the Kimberley district and that the owners and managers of stations are tacitly, if not deliberately encouraging such a state of things . . . then the police are called in to kill and slay. How often do we read that the Police ‘fell in’ or ‘came up’ with a party of natives and there follows a record of slain, or the statement ‘they were taught a severe lesson’ (quoted in Gill 1977, p. 17).

Legal ambiguities To understand the role of police in the war of dispossession it is necessary to consider the legal ambiguities surrounding Aborigi-


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nal people as British subjects and the justification for territorial acquisition. When the British arrived in Australia, there were established legal principles relating to the acquisition of territories. Colonies could be acquired by way of peaceful settlement, by way of conquest or by way of cession. Acquisition by way of either conquest or cession implied that Indigenous people had some prior rights in relation to the possession of land and thereby a recognisable level of law and culture. In contrast, acquisition of the colony on the basis of peaceful settlement implied that Indigenous people living in the territory had no sovereign or system of land tenure. In other words, the implication was that the original inhabitants were living in a ‘state of nature’ and had not progressed to a recognisable level of civilisation.4 It was assumed that New South Wales was acquired by peaceful settlement, that Aboriginal people had never been in possession of their land, and that when the British claimed sovereignty over Australia in 1788, Aboriginal people became British subjects. Of course, these matters were not immediately settled in law and have continued to be debated ever since. The application of the criminal law to Aboriginal people was settled by the New South Wales Supreme Court in the Murrell case in 1836, and the doctrine of terra nullius by the Privy Council in Cooper v Stuart in 1889. However, from the beginning of colonisation the assumption was that Aboriginal people were British subjects. This was evident in an early (and rare) case of a trial of a mounted police officer for the murder of an Indigenous person. Lieutenant Lowe was charged with murder after ordering the execution of an Aboriginal prisoner held in Wallis Plains guard house in 1826. Lowe’s defence counsel argued that Lowe had no case to answer because the victim was not a British subject. His tribe had not been brought under the subjection of the Crown nor had a treaty between the Crown and the tribe been established. The court rejected this argument—but in any event Lowe was found not guilty (Milliss 1994, pp. 66–7; Kercher 1998).5 That Aboriginal people were British subjects was certainly the implication of the view that the colony of New South Wales had been acquired by peaceful settlement and, as Reynolds (1987, p. 2) has noted, Australia continued to be described by various jurists as ‘waste and uninhabited’, ‘waste and unoccupied’, ‘desert and uninhabited’ and ‘unpeopled’ despite evidence to the contrary. Any legal interests Indigenous people may have had in the


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land were considered extinguished at the time of annexation. As Justice Kirby noted in the Wik case, ‘this apparently unjust and uncompensated deprivation of pre-existing rights distinguished the treatment by the Crown of Indigenous peoples in Australia when compared to other settlements established under the Crown in the American colonies, Canada, New Zealand and elsewhere’ (Wik Peoples v State of Queensland, Kirby J at 250). The essential ambiguity in the Imperial instructions given to Governors was that Aboriginal people were to be treated as British subjects, yet their land could be taken without compensation. This ambiguity is seen in the development of both pastoral leases and the border police. The leases legitimised a land grab by providing squatters with some security of title, but were ‘not intended to deprive the natives of their former right to hunt over these districts or to wander over them’.6 If Aboriginal people were compliant they were to be protected, if not it was the colony which was to be defended. It is what one legal historian has referred to as a ‘rubbery attitude to the law’, under which basic notions of equality before the law and the rule of law could be cast aside as occasion demanded (Kercher 1995, p. 6). Governor Phillip abducted Aboriginal people and ordered punitive expeditions and collective punishment, despite the fact that such types of punishment went against the principles of law. Governor Hunter continued with armed ‘pacification’ parties. Governor Macquarie made a martial law proclamation which enabled the use of force on Aboriginal people who were either armed, or unarmed and in groups of more than six. To gain the protection of the British, Aboriginal people had to obtain a certificate signed by the Governor (Johnston 1991a, vol. 2, p. 13). In Tasmania in November 1828 martial law was declared. As the Solicitor-General at the time recognised, ‘the effect of the proclamation [was] to place the aborigines, within the prescribed limits on the footing of open enemies of the King, in a state of actual warfare against him’ (quoted in Reynolds 1995, p. 111). In other words, from the beginning of the British colonisation of Australia, Indigenous people were not offered the same protection of the law as other subjects. This point was recognised at the time and argument often centred on the basic question of whether Indigenous people should be regarded as independent nations with their own laws.7


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Paramilitary policing functions While the legal view that Australia was colonised through peaceful settlement legitimised the denial of Indigenous rights, police actions in ‘dispersing’ Aboriginal people became an important part of colonial policy in ensuring the removal and control of the traditional owners. ‘Dispersal’ became the euphemism for armed conflict, and some 20 000 Aboriginal people were killed during the ‘settlement’ of an ‘unoccupied’ land (Reynolds 1987, p. 1). As the Royal Commission into Aboriginal Deaths in Custody noted, colonial governments could not openly endorse murder, ‘but they could turn a blind eye to what became permissible frontier activities. Native and general police parties were granted the authority to ‘‘quieten’’ Aboriginal people who resisted nonAboriginal rule’ (Johnston 1991a, vol. 2, p. 14). Policing during the early colonial period was characterised both by its repressiveness and military character, and by its diversity according to function. In New South Wales during the first half of the nineteenth century there were six independently controlled forces: the Mounted Police, the Native Police, the Border Police, the Water Police, the Sydney Police and a rural constabulary. The police with most contact with Indigenous people (Mounted, Native and Border forces) tended to have a centralised, coercive and paramilitary structure. The military model influenced the choice of personnel, work routine and other aspects of colonial policing, including dress, accommodation and private life (Finnane 1994, p. 135). The Mounted Police, the Native Police and the Border Police especially had a distinctly military form. The New South Wales Mounted Police were ex- or seconded military personnel with military uniforms, salaries and status, detached in small units around the colony (Neal 1991, p. 151). In Sydney their headquarters were in the military barracks in George Street. Personnel from the British regiments which garrisoned Sydney were transferred to the force and typically it was commanded by a military officer. For instance, Major Nunn, who was in command of the Mounted Police at the time of the Waterloo Creek massacre, had more than 30 years’ previous military experience8 and arrived in Sydney as part of the 80th Regiment. He returned to the 80th after his period in the Mounted Police and served in India, where he later died (Milliss 1994). There are many accounts of massacres by police in Tasmania, New South Wales, Victoria, Queensland, Western Australia and


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the Northern Territory.9 Some accounts show that both combatants and non-combatants were killed, suggesting that the killing of Aboriginal people was widespread and often indiscriminate. (In Western Australia in 1835 a policing operation in response to Indigenous ‘outrages’ on white settlers led to the ‘Battle of Pinjarra’. The diary of one of the participants shows clearly the way in which tribal groups were held collectively responsible for any attack on settlers. During the battle some 25 to 30 Aboriginal people were killed, although it was ‘very probable that more men were killed in the river, and floated down with the stream’ (quoted in Reynolds 1989, p. 48). One woman and several children were also killed. The prisoners who remained were set free after being told that if there were any further spearing of settlers or their cattle, ‘four times the present number of men would proceed amongst them and destroy every man, woman and child’ (quoted in Reynolds 1989, p. 49). One of the most comprehensively researched massacres by police involves the operations of the New South Wales Mounted Police during an 1838 campaign which culminated in the Waterloo Creek massacre (Milliss 1994). During that campaign the Mounted Police murdered between 200 and 300 people of the Kamilaroi nation. Major Nunn had been ordered by Colonel Snodgrass, the Acting Governor, to ‘use your utmost exertion to suppress’ Aboriginal attacks. The killings had ‘a smell of official sanction. There was no legal justification for the pursuit and killings that took place, because they were not done in selfdefence and there was no martial law declaration’ (Kercher 1995, p. 15). Despite the arrival in the colony that same year of Governor Gipps, who was more sympathetic to the situation of Aboriginal people, no-one was held responsible for the murders. Legal historian David Neal has argued that Governor Gipps was constrained in any attempt to apply the law equally when it came to Aboriginal people. The colonial frontier depended on the activities of the Mounted Police and ‘the logic of colonisation and the white invasion of Aboriginal land required the use of force to quash resistance’ (Neal 1991, p. 154). As a result, the rule of law as a constraint on arbitrary power and as a guarantee of equality before the law was suspended in relation to Aboriginal people. This was particularly the case in operations such as those of the Mounted Police under Major Nunn, which resulted in what can only be described as mass murders. The murder of Indigenous people by police parties seeking


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collective retribution for some alleged wrong continued into the twentieth century. In 1926 in the Kimberleys a party led by two police, with four other whites and seven Aborigines, sought revenge for the killing of a white pastoralist. What resulted was a ‘killing spree . . . While some Aborigines were shot, it seems that a number of women and children were clubbed to death. The bodies were burned at four separate sites in what became known as the Forrest River massacre’ (Markus 1990, p. 3). A subsequent royal commission found that at least eleven Aborigines had been killed, a local missionary estimated 30 people, and Aboriginal people put the figure much higher. The two police were eventually charged, ‘to the outrage of the local white population which set up a fund to meet their legal costs. The police were acquitted and promoted out of the district’ (Markus 1990, p. 3; Green 1995). The last recorded massacre occurred in 1928 in Coniston in the Northern Territory, when some 60 to 70 Walpiri people were killed over several weeks by a police party. Murray, the officer in charge, openly admitted to a policy of shoot to kill. According to a missionary who spoke to survivors of the killings, ‘the natives tell me that they simply shot them down like dogs and that they got the little children and hit them on the back of the neck and killed them’ (cited in Markus 1990, p. 163). Murray admitted killing 31 people. Other estimates by missionaries put the figure at between 70 and 100 Aboriginal people killed by the expedition. An inquiry headed by a police inspector, at which Aboriginal people were refused legal representation, was established into the killings. The inquiry cleared those who were involved (Markus 1990, pp. 135–6). The use of native police The reorganisation of policing in the mid-1800s led to the amalgamation of specialist police forces, the noteworthy exception being the Native Police. A Board of Inquiry in 1856 had noted the desirability of maintaining a separate native police because the functions they served could not be easily maintained within a police force of ‘a more regular kind’ (quoted in Finnane 1994, p. 20). The fact that the Native Police remained outside the reorganised force is significant in relation to the practical role they played in containing Indigenous resistance, as well as to the symbolic separation from the administration of justice and the rule of law seen to apply to other inhabitants of Australia. The


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essential ambiguity again highlighted what defining Aboriginal people as ‘British subjects’ meant in practice. In reality the use of a specialist police group on the frontier recognised that Indigenous people were not subject to the same policing or to the same law as non-Indigenous people in Australia. The use of Aboriginal people as police also caused considerable controversy in Australia. The native police served an overtly repressive function, the Queensland Native Mounted Police being referred to as the most lethal force used against the Aboriginal people: ‘a killing machine’ because of the ferocity of their tactics (Evans, Saunders and Cronin 1988, p. xvi; also Reynolds 1990, pp. 41–84). At its most extensive, the force was made up of over 200 Aboriginal troopers, under the command of European officers. According to a Queensland Police Department history of the group, Aboriginal men were recruited in such a way that they were ‘alien to the tribes in the areas in which they served, and regarded all local natives as enemies. This was a calculated policy which prevented fraternisation between troopers and local natives, and being so far from home made it difficult, if not impossible, for troopers to desert’ (Queensland Police Department 1982, p. 1). Indeed, in the early years the Native Mounted Police were recruited from southern and central New South Wales. Occasionally, however, whole detachments did desert in the absence of their officers. According to other contemporary evidence any native trooper who deserted was hunted down and shot (Armstrong, n.d., p. 109; also Reynolds 1990, p. 77); their treatment in general appears to have been fairly brutal. Reynolds (1990, p. 77) noted that there were a number of cases of extreme brutality in the name of discipline where native troopers died or were seriously injured. Moves to establish a native police force, which was originally conceived of as offering some protection for Indigenous people, began in the 1830s. In Port Phillip an Aboriginal police force was established in 1842 and operated until 1852 (Reynolds 1990, pp. 47–50). The much larger Native Mounted Police originated in New South Wales, initially established in 1848 as a force to police the northern districts of the colony. After 1859 this area became part of the new colony of Queensland. However, the colonial government did not pass legislation to retain the force until 1863; that is the Native Mounted Police acted without legislative authority for four years. Even when the Native Mounted Police were brought under the control of the Commissioner they


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remained a distinct entity, not operating under the rules and procedures of the normal police (Evans, Saunders and Cronin 1988, p. 55). The regulations covering the Native Mounted Police were vague and emphasised wide local discretionary power and strict secrecy as to operations. The Sub-Inspectors in command of the detachments were instructed to be ‘very particular in always avoiding indiscrete [sic] discussions’ (quoted in Armstrong, n.d., p. 109). A senior police officer admitted in 1880 that he was ‘forbidden to publish any information which would give the public even the slightest glimpse of the doings of the Native Police’ (quoted in Reynolds 1990, p. 63). The instructions to the officers of the Native Mounted Police included the following: It is the duty of the officers at all times and opportunities to disperse any large assemblage of blacks; such meetings, if not prevented, invariably lead to depredations or murder . . . The officers will therefore see the necessity of teaching the Aborigines that no outrage or depredation shall be committed with impunity—but on the contrary, retributive justice shall speedily follow the commission of crime.10

Police and others at the time noted that ‘disperse’ meant ‘firing at’, a policy which meant that the conduct of any Aboriginal meeting or ceremony could be disrupted by force. Thus the police effected the disruption of ceremonies, meetings and cultural life, as well as forming a militarised force to quash resistance. According to Loos (1993), the Native Mounted Police were an effective paramilitary force which were able to conduct punitive expeditions when required and provide general patrols to drive Indigenous people away from pastoral or mining areas. Supported by British resources and able to live off the land better than a white frontier force, ‘they were empowered with a mobility and firepower that made them quickly masters in a situation where naked aggression was accepted as the only practicable method of ‘‘opening up the land’’ ’ (Loos 1993, p. 12). There was criticism of their role. Contemporary Queensland accounts of the actions of the Native Mounted Police in Maryborough in the 1860s reveal revulsion at their open slaughter of Aboriginal people (Reynolds 1989, pp. 48–9). There was widespread recognition that ‘dispersal’ also meant murder.11 Evidence by Lieutenant Wheeler before the inquir y into the Native Mounted Police in 1861 showed that he ‘didn’t waste time to see M


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whether a cow or bullock had been speared . . . I don’t think they can understand anything else except shooting them’ (quoted in Armstrong, n.d., p. 111). Despite numerous scandals, and criticism both locally and from outside the colony, the force remained because it was thought necessary for the expansion of the colonial frontier (Reynolds 1993, p. 57). In Western Australia a variation of the native police also served the functions required by the squatters, particularly in the Kimberleys. Trackers or native assistants were used to accompany police on their patrols. The native police were usually armed. Some were recruited locally and others came from various prisons (Gill 1977; McGregor 1993). The police worked in close relation with squatters as Indigenous resistance against people and property continued during the late nineteenth century. In the early 1890s, after the killing of a police officer and the death of 23 Aboriginal people, there was some discussion of establishing another native police force, similar to the Queensland Native Mounted Police. The need for such a force was argued in Parliament along the lines of: ‘I hold it is simply a question of whether the natives are to have the country or the whites . . . It is simply a question of whether we or they are to have this country’ (Francis Connor quoted in Gill 1977, p. 11). A new force on the Queensland model was never adopted. There is some debate among historians over the extent to which the Western Australian and Queensland use of native police was similar. Gill (1977) argues that the difference was only a matter of degree, in the numbers employed. Special constables and native assistants were regularly used to accompany police on punitive patrols in Western Australia. ‘Dispersing the natives’ was the principal tactic utilised rather than arresting specific offenders. Aboriginal camps were usually ‘rushed’ at first light and people were shot as they tried to retaliate or escape (Gill 1977, pp. 16–17). Special constables, native trackers and State police were all involved in the murder of Aboriginal people in Western Australia. In contrast, McGregor (1993) maintains that there were marked differences in composition, mode of operation and degree of centralised control between the Queensland and Western Australian forces. There is no doubt that with the Queensland Native Mounted Police the rule of law was suspended and the normal duties of apprehending suspects and conveying them to court were absent. ‘Shooting was their sole mode of operation’ (McGregor


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1993, p. 71). However, although the Western Australian policing of the Kimberleys relied on dispersal tactics at various times, the force did engage in the more normal function of arresting Aboriginal people and bringing them to court. Hundreds of Aboriginal people were arrested, charged and imprisoned— usually for stock stealing. This frequently occurred on the basis of little evidence, and there was an economic incentive for police to arrest as many Aboriginal people as possible: they were paid an allowance per prisoner per day which frequently ‘went straight into the constable’s pocket’ (McGregor, 1993, p. 74). The Victorian Port Phillip Native Police Corps provides a somewhat different example in the way native police were recruited and used. In Victoria they appear to have played a wider policing role and have been interpreted as providing a more positive buffer between colonial expansion and Indigenous people. Indeed the ‘native police’ were seen as part of the process of both incorporating Indigenous people into the structures of government, as well as regulating Indigenous social behaviour in the interests of greater conformity to European standards. Aboriginal people were also able to use the system in Victoria to provide some protection for their own people (Fels 1988). There are also examples of Indigenous use of the native police system in Western Australia, with accounts of native assistants being suspected of deliberately misleading police or forewarning Indigenous people of police approach. The armed revolt led by Police Native Assistant Jundamarra in the Kimberleys is the best known example of this form of resistance (McGregor 1993). By the end of the nineteenth century there was substantial criticism of native police. In 1897 the Queensland Commissioner of Police, William Parry-Okeden, was asked to report on the activities of the Native Mounted Police. While he condemned their operations, he did not call for their disbandment. His report, like that of Meston in 1895, called for protection of Aboriginal people through greater regulation and control.12 In Western Australia, Dr W. E. Roth wrote a report in 1905 on the condition of Indigenous people in that State which, among other things, was highly critical of police. He was also critical of the native police system. The colonial nature of the native police remained even after they were disbanded as distinct units (Finnane 1994, p. 116). In Queensland some were kept on as ‘trackers’ with low pay, while in Western Australia the ‘trackers’ were paid nothing, although


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their supervisors received money to clothe and feed them. There were ongoing suspicions that supervisors profited from the arrangement by forcing the trackers to supply their own food. Terror, resistance and the suspension of the rule of law Despite the view that Aboriginal people were British subjects, the processes of colonisation required a suspension of the rule of law in relation to Indigenous people. This can be seen in the years immediately following the establishment of the New South Wales Mounted Police in the mid-1820s, when they were used to quash Indigenous resistance in the Hunter region. They quickly disposed of legal formalities: Aboriginal people who were taken prisoner were executed and their bodies hung in trees to terrify others (Milliss 1994, pp. 55–7, 65–8; Goodall 1996, pp. 27–9). Terror became an important part of the process of dispossession and it continued to be used as an instrument of control. Aboriginal people were publicly executed in Western Australia long after the practice had ceased for non-Indigenous people. In 1892 three Aboriginal men convicted of killing a miner in the Kimberleys were taken back to the site of the murder and publicly hanged in front of a large group of Aboriginal people who had been tricked into attending the spectacle by promises of food (Gill 1977, p. 15). Several legal historians have noted that the law of murder (when Aboriginal people were killed by non-Aboriginal people) ‘went into virtual suspension as an adjunct to the dispossession of Aboriginal landowners’ (Neal 1991, p. 154). Similarly, Kercher (1995, pp. 7–9) noted that if Aboriginal people were indeed British subjects then the official and unofficial killings which took place in Van Diemen’s Land during the Black Wars were mass murders. Even the declaration of martial law did not legitimise the killing of children, non-combatants or captives without some form of trial.13 In the case of the large-scale murders of Kamilaroi people by the Mounted Police in northern New South Wales, no martial law declaration was in place which could provide any form of legitimacy to the events which took place. Thus the suspension of the rule of law in regard to the murder of Aboriginal people became a defining feature of the colonial period. Some historians have argued that it lasted well into the twentieth century.14 Racial stereotypes were also important in depoliticising the Indigenous struggle against invasion. As Reynolds (1995,


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Chapter 7) forcefully argues, the popular view of the early nineteenth century, of Aboriginal people as barbarous and treacherous ‘savages’, obscures the role that was played in organised Indigenous struggle and later negotiations with colonial forces. Aboriginal negotiation was important in concluding the Black Wars in Tasmania (Reynolds 1995). Even in Queensland, where generally the Native Mounted Police had the upper hand militarily, Aboriginal resistance based in the rainforest areas of the north meant that the tactical advantages enjoyed by the police were not so apparent. According to Loos (1993, p. 17), police with the aid of Aboriginal interpreters were able to negotiate a truce with Aboriginal people in the areas around Atherton. Similarly, painting Indigenous people as helpless victims against the violence of the colonisers also delegitimises Indigenous acts of defence—Aboriginal people constantly tried to adapt methods of resistance to the challenges they faced. One important implication of these views is that the organised violence used by colonial authorities to remove and control Indigenous resistance is also inadequately conceptualised, when the historical accounts we have show that the mounted police and native police used terror and violence as a systematic tactic of warfare. The summary executions and the hanging of corpses in trees, the attacks on tribal groups as a form of collective punishment, the indiscriminate killing of men and women, adults and children, were intended to terrorise and pacify. In other words, the violence was not simply a series of undifferentiated acts. Morris (1992) has argued there was a ‘culture of terrorism’ which sustained the use of violence. Colonisers could engage in a form of ‘redemptive’ violence which involved massacring people within the context of cultural constructions of Aboriginal people as treacherous savages. Aboriginal resistance was recast as savagery which was only amenable to control by violence or the threat of violence. By the 1830s, at a time of broadening hostilities between Indigenous people and colonisers, the ‘doomed race’ view of Aboriginal people had taken hold in the colonial imagination (McGregor 1997, p. 14), and no doubt played a part in rationalising the use of violence which became accepted as a normal and justifiable way of dealing with Indigenous people (Reynolds 1993). Constructed racial differences also justified the use of certain brutal punishments which were increasingly seen as inappropriate for non-Indigenous people. For Aboriginal people, floggings and the use of neck and leg chains remained in use until the 1930s. Indeed, it was not


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until 1936 that the Northern Territory superintendent of police banned police punitive patrols and the use of violence in interrogations (McGrath 1993, pp. 103–4). In addition to the representations of Aboriginal people which provided a moral and cultural legitimacy to violence, there was also a politics to the use of terrorism by the colonisers. The failure to give Aboriginal resistance a political interpretation meant that the war by Indigenous people against dispossession and colonisation was essentially seen as a breach of the criminal law rather than the defence of land. Aboriginal resistance was recategorised as a law enforcement problem. Attacks on livestock, property and individuals were seen as criminal acts and Aboriginal people as criminals (Sturma 1987, p. 26; Johnston 1991a, vol. 2, p. 22), but whether Indigenous people were dealt with by the law as criminals depended on specific circumstances. In general, policing operations were highly militarised and involved dispersal and summary executions by mounted police or native police units (Neal 1991; Milliss 1994; Kercher 1995). There was debate at the time about the status of Aboriginal people— were they ‘rebellious’ or a nation resisting a foreign invasion? During the Black Wars in Tasmania of 1824–31, many nonIndigenous people regarded themselves as invaders who were engaged in a war. Historians writing about these events since have had no difficulties in referring to ‘invasion’, ‘resistance’ and ‘warfare’ (Reynolds 1995, p. 207). In general, however, the legal position adopted was quite clear: Aboriginal people were seen as British subjects, not as foreign nationals resisting invasion. In theory at least, they were subject to equal protection by the law.

THE INTENSITY OF SURVEILLANCE: POLICE AS GUARDIANS The introduction of protection legislation changed the shape of interaction between the colonial states and Indigenous people in Australia. The ‘protection’ period covers quite distinct legislation in different jurisdictions and is reflective of differing motives in colonial policy, yet in broad terms it saw the emergence of a new type of relationship between the police and Indigenous people. The police became the administrators of a new form of legal regulation which sought extensive control over all aspects of Aboriginal life. Conflict between Indigenous people and the colonial state entered a new phase, where open violence and terror


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were to be replaced by the intensification of surveillance and regulation. The Act to Provide for the Protection and Management of the Aboriginal Natives of Victoria 1869 provided the legislative basis for control of Aboriginal people in Victoria. It established the Board for the Protection of Aborigines and gave the power to prescribe where Aboriginal people could live; regulations were also introduced to establish employment conditions. Legislation in 1886 focused on differentiating ‘full-bloods’ from ‘half-castes’ and forcing the latter from stations administered by the Board. The role of the police was to remove people when called upon by station superintendents (Chesterman and Galligan 1997, pp. 15–24; Attwood 1989). An Aborigines Protection Board was established in New South Wales in the 1880s. The Board included the Commissioner of Police to supervise the work of police who were to be appointed as protectors (Goodall 1996, p. 90). The Queensland protection legislation in 1897, which was aimed at providing extensive control over Indigenous people and concentrating them in particular locations, became a model for Western Australia and the Northern Territory also. The New South Wales Aborigines Protection Act 1909, which also facilitated extensive control over Indigenous people, was aimed at dispersing concentrations of Aboriginal populations and, later, the removal of Aboriginal children to institutions. From the 1880s, discussion about Aboriginal people embodied the social Darwinian view that they were the lowest rung on an evolutionary ladder. Anthropologists sought to uncover the ‘ape-like’ or primitive characteristics of a ‘race’ of people held to be the most backward in the world (McGregor 1997, pp. 39–41). By the turn of the century, there were differences of opinion as to whether Aboriginal people would become extinct, but there was a common purpose around the need to segregate so-called ‘full-blood’ Aboriginal people and to prevent the further growth of a ‘half-caste’ population. Indeed, the growing half-caste population became seen as the key problem of Aboriginal affairs. Control demanded an array of laws to regulate employment, residence, sexual and other social activities. Major provisions of the protection legislation at the turn of the century embodied these concerns—particularly in Queensland, Western Australia and the Northern Territory. Although ‘protection’ legislation was ostensibly meant to protect Indigenous people from the worst excesses of European civilisation, it is clear that little was done to police European


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interventions into Indigenous people’s lives in the areas of sex, work or the supply of alcohol (Finnane 1994, p. 121; McGregor 1997). Protection legislation was concerned with the control of Aboriginal people. The First Protector in the Northern Territory, Herbert Basedow, recommended (although his recommendation was never followed) that Aboriginal people have a ready means of permanent individual identification by way of a ‘one or two square inch’ lesion of the skin (McGregor 1997, p. 69). In the 1930s the then Protector, Cecil Cook, finally achieved a similar result through subjecting Aboriginal people in the Darwin district to fingerprinting, compulsory medical examination and the issuing of a numbered bronze disk which corresponded to a detailed government record. The disks, which were to be worn around the neck or on a hat as permanent identification, became known by Aboriginal people as ‘dog tags’ (Markus, 1990, p. 100). Similarly, the attempts to control interracial sexual activity inevitably placed restrictions on Aboriginal people only. In the Northern Territory regulations introduced in 1916 made Darwin a prohibited area for Aboriginal people, with the exception of a designated compound. They were allowed into the town only with written permission and on legitimate business. Ordinances in 1918 attempted to regulate and largely prohibit sexual activity between Aboriginal and non-Aboriginal people (McGregor 1997, p. 91). Despite differing policies, the essential feature of protection in the development of Aboriginal–police relations was the extensive power given to police to control Indigenous people. This power included both formal legal powers and day-to-day control through the administration of government policy. An example of the administrative power given police is the fact that two of the four Chief Protectors in the Northern Territory between 1914 and 1927 were senior police—one an inspector and the other the Commissioner (McGregor 1997, p. 88). As noted above, in New South Wales the Commissioner of Police was an ex-officio member of the Aborigines Protection Board. In Queensland the Police Commissioner was the Chief Protector (Wearne 1980, p. 13). In most states the protection legislation relied on the appointment of police officers as protectors. Indeed in the parliamentary debates around the Queensland protection legislation, it was acknowledged that ‘an instrument which some years ago was their greatest enemy—the police’ would now be the protectors of Aboriginal people (Wearne 1980, p. 13). The effect of protection policies and their administration through the police was to estab-


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lish a powerful instrument in the criminalisation of Aboriginal people on the basis of their race. Protection legislation racially segregated Aboriginal people from Australian citizens and proceeded to criminalise certain types of behaviour. For example, the criminalisation of Indigenous people for alcohol offences and their subsequent incarceration began with the introduction of the Western Australian protection legislation in 1905 (Haebich 1992, p. 110). Thus, a significant feature of protection legislation was the exercise of criminal sanctions over Indigenous people. Although the Acts were couched in the language of protection, essentially the model for administration and maintenance of control utilised the institutions of the criminal justice system through extensive police participation in the process and by way of essentially penal sanctions built around the deprivation of liberty. The actual extent to which Chief Protectors and Protection Boards relied on police on a day-to-day basis varied through periods, across jurisdictions and within jurisdictions. It depended on a number of factors, including the resources available for the administration of protection and the level and type of Indigenous resistance. Police duties in administering the protection legislation clearly inscribed a particular relationship between the police and Indigenous people, one which was different compared to police and other citizens. These powers were elaborated in the regulations of protection laws and involved an intimate level of individual, social and economic surveillance. The 1897 Queensland protection legislation, for example, denied basic citizenship rights to Indigenous people, including freedom of movement, employment, freedom to marry and raise their children, and placed restrictions on other areas of personal autonomy. At the time of the introduction of the legislation, dissenters thought that the extensive power to remove Aboriginal people onto reserves treated them as criminals. The Act created protectors throughout Queensland, many of whom were police officers, and the administration of the legislation became largely the responsibility of the Police Department. The extensive regulation of the lives of Aboriginal people and the corresponding legislative denial of basic human rights became inextricably linked with the day-to-day functioning of police work. The breadth of discretion afforded superintendents and protectors meant there was ‘very little restraint on their exercise of power’ (Chesterman and Galligan 1997, p. 41). New forms of native police were also


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to emerge under the protection legislation. Superintendents on Queensland reserves were given power to conduct courts and had control over their own Aboriginal police force on the reserve. Aboriginal and Torres Strait Islander people on reserves came to be called ‘inmates’ and those who ‘escaped’ were charged with desertion (McGrath 1993, p. 107). Like the legislation in other states, the New South Wales Aborigines Protection Act 1909 embodied the legislative power to exert massive control over the movement and lives of Aboriginal people. It remained in force until 1969. To enforce the legislation the Aborigines Protection Board relied heavily on the police because of its own shortage of staff. Under the 1909 Act, the police were expected to conduct a number of functions which were of both a protective and prosecutorial nature. Goodall (1982, p. 179) has noted twelve functions the police were asked to fulfil by the Board between 1914 and 1934. These included control over rations, maintaining order on reserves, controlling the access of Aboriginal people to and from reserves and expelling ‘trouble makers’, deciding whether or not an Aboriginal person was sick enough to see a doctor, recommending on the disposal of reserve land, removing children from their parents and instituting proceedings to remove whole Aboriginal communities from certain localities.

THE REGULATION OF PERSONAL, FAMILIAL AND SOCIAL RELATIONS During most of the twentieth century governments continued to play the fundamental role of defining who was Aboriginal and who was not—leading to inter- and intra-jurisdictional contradictions. A person could be either Aboriginal or non-Aboriginal depending on the particular piece of legislation being considered or the particular jurisdiction in question. The law functioned to define the very essence of Aboriginality. As the century progressed the states became even more authoritarian in their dealings with Aboriginal people, law and policing being used to control what continued to be seen as a problem of race. After defining the ontology of individuals, the law was used to regulate reproduction. As a 1933 Northern Territory administrator’s report simply asserted, ‘in the Territory the mating of an Aboriginal with any person other than an Aboriginal is prohibited’ (quoted in Cummings 1998, p. 219). In Queensland in 1934 sexual intercourse between an Aboriginal woman and a non-Aboriginal man became


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an offence in an effort to ‘eradicate the curse of the breeding of half-castes’ (quoted in Wearne 1980, p. 14). There were other pressures on protection regimes which led to more authoritarian control. In New South Wales the economic depression of the 1930s, the failure of the Board’s dispersal policies and racist complaints by some whites in country towns, led to new forms of intervention and increased regulation by police. Significant amendments to the New South Wales Aborigines Protection Act in 1936 allowed the confinement of Aboriginal people against their will on reserves administered by the Board. The legislation became known in that state as the ‘Dog Act’ (Goodall 1996, pp. 193–5). In Victoria draconian disciplinary regulation remained in place for the first half of the twentieth century, including the power of reserve managers to fine any Aboriginal person for breach of ‘good behaviour’. At Lake Tyers in the late 1940s Aboriginal people needed permission to leave the reserve. ‘Residents’ could be fined for speaking back to a manager and could only speak to white visitors in the presence of the manager or sub-manager. Lake Tyers was referred to as the ‘Prison Farm’ by Aboriginal people (Chesterman and Galligan 1997, pp. 123–5). The types of individuals employed as reserve managers were demonstrated by the New South Wales Aborigines Protection Board, which favoured former police officers, colonial administrators, regimental sergeant-majors and prison warders (McGrath 1993, p. 105). The emphasis on punitiveness and control provides an insight into our understanding of life on the managed reserves; on the reserves it was clearly seen in the context of imprisonment. Of course, Aboriginal people fought back, as they had done since the early period of invasion. For instance, the Aboriginal people living at Cumeragunja on the Murray River in New South Wales continually resisted the Aborigines Protection Board’s attempts to resume farm blocks on the Reserve and the Board’s stealing of children. During the early decades of the twentieth century, the Board continually called on the police to expel troublemakers from the Reserve. Resistance was criminalised through public order and trespass offences under the criminal law, as well as particular offences under protection legislation— including the offence of ‘harbouring any expelled aborigine’ (Goodall 1996, pp. 126–8). In Queensland the district protectors of the 1930s continued to be mainly police officers. The 1939 Aboriginals Preservation and


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Protection Act (Qld) increased the comprehensive levels of control. According to Wearne, to protect white community standards, protectors could order Aboriginal people to ‘observe habits of orderliness and cleanliness’, could prevent the playing of games, could open any mail, prohibit dancing and other ‘native practices’. Police control of Aboriginal money through trust accounts placed Aboriginal people in Queensland in a state of dependency on the police, as well as opening possibilities for individual and organisational corruption (Finnane 1994, p. 121). From the early 1900s regulations required the payment of up to 80 per cent of an Aboriginal worker’s wage to the protector (usually a police officer) to be held in trust. Workers had to apply to the protector if they wanted to use their money.15 In Western Australia it was similarly noted that police control of rations for Indigenous people provided the opportunity for corruption (Haebich 1992, p. 98). Following a legislative change in 1944, Aboriginal people in Western Australia could apply for a certificate of citizenship. Citizenship could be lost by not maintaining the ‘habits of civilised life’, by being convicted twice for a criminal offence or by contracting any number of diseases. A photograph was required to be affixed to the certificate ‘in the manner of a passport’ (Chesterman and Galligan 1997, p. 133). The certificate was symbolic of the extent to which the rights of ordinary citizenship had been removed from Indigenous people—people who were now ‘foreigners’ in their own land, who could only move freely when holding a ‘pass’. Their citizenship, rather than a right, was highly contingent on meeting the requirements of non-Indigenous society. Exemptions from protection legislation in various states were increasingly referred to as ‘dog licences’ by Aboriginal people. Removing children In Victoria the divisions drawn between full-bloods and half-castes carried over into the separation of adolescents and children from their families. After 1871 any ‘neglected’ Aboriginal child could be removed to an industrial or reformatory school. There is evidence that the Board complained to police that the requirement to prove that Aboriginal children were destitute was an impediment which had led to some children being returned to their parents. In 1899 new regulations allowed for the removal of any Aboriginal child where it was decided that it was for their


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‘better care, custody and education’. By 1900 it was decided that all half-caste children would be sent to industrial schools once they reached the age of twelve years (Chesterman and Galligan 1997, p. 26). The protection legislation itself embodied particular assumptions concerning the incompetency of Aboriginal people to look after their own interests and their inability to conform to ‘normal’ family standards. Goodall (1990b, p. 7) has also argued that the New South Wales Protection Board’s campaign to widen the protection legislation in 1915 to allow for child removal without a court hearing rested on a public campaign that defined all Aboriginal parenting as negligent. Goodall has also argued that such assumptions about the incompetence of Aboriginal childnurturing were to permeate police views in their carrying out of the Protection Board policies. More generally, these assumptions reinforced a view of Aboriginal culture as degenerative, inferior and in need of regulation. In the Northern Territory the police were responsible for implementing the Commonwealth policy of segregating ‘lightskinned’ children. Indeed, it would appear that in Alice Springs in 1914 the local Chief Protector (who was the police sergeant) took a very active role by initiating the establishment of a government institution for Aboriginal children and young people. Accordingly, police on patrol were instructed to seize children and bring them back to the institution (Markus 1990, pp. 22–36). During the 1930s Dr Cecil Cook, the Chief Protector of Aboriginals for the Northern Territory, greatly expanded the practice of child removal through the use of police as part of a wider system of strict control and regulation. The policy of child removal has deeply conditioned the Aboriginal view of what the rule of law has meant for their families and kin. The long-term social and political ramifications of that policy are still being felt. It has been estimated that in Australia today there may be 100 000 people of Aboriginal descent who do not know their families or communities (Edwards and Read 1988, p. ix). Specifically in relation to police, it has been noted that ‘the fear that police were arriving to take the children meant that all the Aboriginal community treated any arrival by police with fear and suspicion’ (ADB 1982, p. 125). Some of the children removed by police are now the adults being arrested for street offences. ‘It is therefore not surprising that there are many levels


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of tension and conflict between the two groups’ (ADB 1982, p. 125). Under the policy of forced child removal the police operated once more within a legal context which involved the suspension of the rule of law. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families found that there was a suspension of common law rights with the removal of Indigenous children during the protection and assimilationist periods, described by the Inquiry as a gross violation of human rights (NISATSIC 1997, see Chapter 13). The Inquir y found that basic safeguards which protected nonIndigenous families were cast aside when it came to Indigenous children. The main components of forced removal which violated the rule of law were the deprivation of liberty, the deprivation of parental rights, abuses of power, breach of guardianship duties and the violation of human rights (including genocide and racial discrimination). Police were involved to a greater or lesser extent in all these actions. In regard to deprivation of liberty, the Inquiry found that ‘the taking of Indigenous children from their homes by force and their confinement to training homes, orphanages . . . amounted to deprivation of liberty and imprisonment in the common law sense’ (NISATSIC 1997, p. 253). The safeguard of court scrutiny before detention was denied to Indigenous children and permitted their removal by the order of a public servant at the same time as the removal of non-Indigenous children required a court order. In regard to deprivation of parental rights, it was found that in some jurisdictions legislation stripped Indigenous parents of their parental rights and made a Chief Protector the legal guardian of all Indigenous children. This was contrary to the common law which safeguarded parental rights—a parent could only forfeit parental rights if a court found misconduct or that state guardianship was in the child’s best interest (NISATSIC 1997, p. 255). Although legislation authorised the removal of Indigenous children, some protectors resorted to kidnapping or trickery. There are many examples of children being taken directly from school without their parents’ knowledge (NISATSIC 1997, p. 257). These actions were abuses of power—actions beyond what was authorised by the legislation. Furthermore, protectors had a duty of care and protection to those over whom they exercised control—a duty to protect children from physical, emotional and sexual abuse.


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Controlling movement One of the key limitations placed on Aboriginal people during the protection period was the restriction of their movement. Next to their exclusion from the right to vote, the restriction on movement was a clear statement of their restricted citizenship rights (Chesterman and Galligan 1997, p. 50). What is important in this context is that restriction on movement is fundamentally a police task. It inevitably involves surveillance and intervention for enforcement, and that enforcement is often based on the wishes of local elites. Haebich (1992, pp. 304–7) gives the 1932 example of Western Australian police acting on the complaints of local white settlers and politicians to remove Aboriginal people living in ‘town camps’ around Northam to the Moore River Native Settlement. Not only those living in the camps were moved, but also about 90 people living in surrounding districts, including those who were in employment. In the Northern Territory, the town area of Alice Springs was a prohibited area for Aboriginal people under the Territory’s Aboriginal Ordinance unless they were exempted from the legislation or had a permit to be there. There are examples in the early 1950s of police using powers in relation to the Ordinance to control Aboriginal use of public space in Alice Springs, when they began demanding evidence of exemption or permission and arresting Aboriginal people who could not comply. Protest against police behaviour led to the establishment in Alice Springs of the Australian Half Caste Progressive Association (Chesterman and Galligan 1997, p. 173). Many north-western New South Wales towns, including Bourke, Brewarrina, Moree and Walgett, have been at the centre of longstanding Aboriginal–police conflict in regard to the use of public areas. Each of these towns and its surrounding area has a particular history in relation to the development of colonial policies for dealing with Aboriginal people during the twentieth century. Aboriginal people from Angledool, Tibooburra and Quambone were ‘concentrated’ at Brewarrina during the 1930s. The actual removal of communities was effected by armed Aboriginal Protection Board inspectors with the support of armed police. People were given three to four hours to pack up their belongings (Goodall 1996, p. 215). With the growing Aboriginal population in Brewarrina, pressure was placed on police by the local council to keep Aboriginal people out of the town at night and to prevent


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them from congregating in the streets. The local Justices of the Peace who determined the charges of vagrancy, drunkenness and so on were the same people who were active on Council and were instructing police to clear the streets, instructions recorded in the minutes of Local Council meetings (Goodall 1982). Local Aboriginal people have recalled frequent conflict with police during this period and ongoing police harassment (Goodall 1996, p. 204). Jimmie Barker has described the physical abuse and treatment meted out to Aboriginal people by the police in Brewarrina during the 1930s. The fear in which Aboriginal people held the police meant that ‘a dark man would run and hide if he saw a uniformed policeman approaching’ (Matthews 1977, p. 145). More recently, personal accounts of non-Aboriginal people working in Brewarrina in the 1970s recall the arbitrary and discriminatory arrests of Aboriginal people for drunkenness (Cunneen and Robb 1987, p. 201). In the 1920s and 1930s curfews became a way of excluding Aboriginal people from country towns after dark. While there was never any specific law enabling curfews, police were able to maintain exclusive white use of the town through harassment, violence and the use of other criminal charges (Goodall 1996, p. 177). In places like Walgett and Moree, Aboriginal people were regarded as a law and order ‘problem’ which required constant control. Segregation of Aboriginal people in all spheres of life continued in these towns until well into the 1960s. Theatres had roped-off special sections, hotels refused drinks, hospitals had special ‘wards’ (Aboriginal women were precluded from giving birth in the maternity ward), local dances refused access, recreational and service clubs refused membership and entry, clothing stores refused to allow clothing to be tried on, cemeteries had separate burial areas.16 These restrictions were part of a spatial politics which denied Aboriginal people access to basic services and conditions of life, which thus became the exclusive right of non-Indigenous people. The police played an important part in maintaining racial segregation. Oral histories recall the maintenance of a 6 pm curfew for Aboriginal people in Walgett and the fact that an Aboriginal found on the streets after this time would be charged with drunkenness (Goodall 1982, p. 164). These boundaries were also maintained through the direct violence of vigilante groups of white youths, which operated in Brewarrina, Walgett, Kempsey and Taree with the tacit support of police (Goodall 1996, p. 177).


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ASSIMILATION Despite the move in Indigenous policy towards assimilation in the postwar period, citizenship for Indigenous people was still a restricted category. In 1948, when Aboriginal people became with other Australians ‘Australian citizens’, citizenship rights were still restricted in the area of the franchise and social security. Under the Commonwealth Social Services Consolidation Act 1947 an Aboriginal person (defined as an ‘Aboriginal native’) could only receive Commonwealth entitlements if they were exempted from state protection legislation. In states such as Victoria and Tasmania, which had no protection legislation, Aboriginal people could receive benefits only if the Director-General was satisfied that the character, social development and standard of intelligence of the person justified the benefit (Chesterman and Galligan 1997, p. 163). After 1959 the Commonwealth exclusionary provisions were changed to include only Aboriginal people whose mode of life was ‘nomadic or primitive’. For those living on reserves who could now receive entitlements, the pension was paid to the reserve superintendents, a portion being placed in a trust account which could only be drawn upon under supervision (Chesterman and Galligan 1997, p. 165). In the Northern Territory the 1953 Welfare Ordinance saw a change in tack where the loss of citizenship rights became a function of personal characteristics rather than race. The Ordinance repealed the former Aboriginal Ordinances and referred to ‘wards’ rather than Aboriginal people. However, by 1961 some 95 per cent of Aboriginal people in the Northern Territory were declared to be wards (Chesterman and Galligan 1997, pp. 174–5). The Director of Wards exercised significant control over wards, which included where they could reside, who they could marry, their employment and whether they should be taken into custody. Wards received about one-fifth of the wages of white workers in the pastoral industry. A new Ordinance in 1964, the Social Welfare Ordinance, changed the terminology from ‘wards’ to ‘persons in need of assistance’ and included the power to supervise Aboriginal reserves. The Director retained wide discretion, although some of the general prohibitions on wards were removed (Chesterman and Galligan 1997, pp. 175–6). Assimilationist policies in Queensland were reflected in the Aborigines and Torres Strait Islanders Affairs Act 1965. Reserve superintendents became ‘managers’ and the reserves were now


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‘communities’. For those Aboriginal and Torres Strait Islander people ‘under the Act’ there were still a range of authoritarian measures designed to control their day-to-day lives. Punishment for disciplinary matters was still arbitrary and at the whim of the superintendent and the local police. There were many ‘offences’ which were specific to Aboriginal and Torres Strait Islander people, not defined as criminal in the broader community. Aboriginal people required permission to leave the reserves, and could be punished by detention for ‘indiscipline’ or ‘immoral behaviour’. Rowley (1972, p. 123) observed of the racially-defined and arbitrary nature of justice for Indigenous people that it was ‘still true that in Queensland one can be incarcerated either for crime or for being an Aboriginal’. Where police were also local clerks of the courts they continued to control trust accounts for Aboriginal people. Pat O’Shane recalls going to a police station to organise a permit for a demonstration in the 1960s, and an Aboriginal man from Yarrabah requesting ten dollars from his account. He was only ‘allowed’ one dollar (Rintoul 1993, p. 51). Such control showed the ongoing dehumanising and punitive bond which protection legislation had introduced into the relationship between Indigenous people and the police. Life for Indigenous people off the reserves was also subject to increasing police surveillance through the maintenance of public order legislation. One of the few empirical studies in the 1940s that considered the issue of criminal charges showed that the overwhelming majority of convictions of Aboriginal people in rural New South Wales were for drunkenness (Reay 1945, pp. 299–302). Similarly, Rowley found in the mid-1960s that most convictions of Aboriginal people were for drunkenness (Rowley 1972). Another study of police charges of Aboriginal people in Brewarrina in 1964 found that public order offences accounted for 96 per cent of all charges laid against Aboriginal adults. Some 97 per cent of all charges were heard and determined by the six local Justices of the Peace (Cunneen and Robb 1987, p. 199). The Max Stuart case in South Australia showed the routine way Aboriginal people were charged with drunkenness as a way of containing and controlling Aboriginal use of public places (Inglis 1961, pp. 4–5). The case also showed the way in which police unfairly interrogated Indigenous people who had little command of the English language. In Stuart’s case this almost led to his execution (see Inglis 1961). In summary, the nature of police interaction with Indigenous


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people was contextualised by authoritarian legislation (first described as protectionist and later as assimilationist) until well into the latter part of the twentieth century. The intensification of surveillance had replaced the more overt forms of terror, regulation and supervision was increasingly sought instead of widespread violence. However, the police assisted in maintaining Indigenous people in a position which denied them fundamental human rights. The denial of the rule of law in regard to the murder of Aboriginal people and the expropriation of land without compensation had been the hallmark of the eighteenth and nineteenth centuries. In the twentieth century it was the suspension of the rule of law and the denial of basic citizenship rights which saw the most extensive regulation of Indigenous people and the active disruption of familial, social and cultural life. Indigenous struggle in Australia during the early twentieth century reflected resistance to the denial of citizenship rights. For example, the Australian Aboriginal Progressive Association (AAPA) was an active Indigenous organisation which forged links around New South Wales during the 1920s. Its initial concerns were to assist children who had been stolen from their families. The first country conference was held in Kempsey in 1925. Key concerns were the demand for land and the effects of segregation in schools and hospitals on Aboriginal peoples’ health and education. By 1927 the AAPA had developed a platform which called for full citizenship rights, land as compensation for dispossession, the dissolution of the Aborigines Protection Board and the immediate cessation of removing Aboriginal children from their families (Goodall 1996, pp. 149–70).

THE NATURE OF COLONIAL POLICING The legal order which police came to enforce was very much the law of a colonial state which excluded Aboriginal people and sought their control. The defining features of colonial policing in relation to Indigenous people in Australia fall into four main categories. First, Indigenous people were subject to paramilitary policing units in a way which was largely outside the experience of other people in Australia. These included groups such as mounted police and native police forces. Second, much of the policing which occurred was in the context of military-style operations which resembled far more a state of war than the type of policing expected in rural and urban communities where there


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was a degree of political and social consensus. These warlike police operations were influenced by the level of Indigenous resistance, which at times could appear to threaten the general prosperity of the colony (Reynolds 1987, p. 27). Policing became a key weapon in the expansion of British de facto jurisdiction in Australia. Third, policing was contextualised within the legal ambiguity which surrounded the position of Indigenous people within the colonies. While on the one hand they were seen to be British subjects, Indigenous people were afforded little protection by the law. Summary executions and mass murder by police and others showed how clearly Indigenous people were beyond the boundaries of legal protection. A characteristic of both the early colonial period and the later protection period was the suspension of the rule of law in relation to Indigenous people. In the early period the murder of Indigenous people could be overlooked; in the latter period common law protections ensuring basic rights and freedoms could be cast aside. In other words, the rule of law as a constraint on arbitrary power and as a guarantee of equality before the law was suspended. In the long term, police legitimacy relies on the rule of law; on the impartial application of rules, the protection of individual rights and procedural fairness, and in this sense has never existed in Indigenous communities in Australia. Finally, the suspension of the rule of law and the use of terror and violence by police forces against Indigenous people was contextualised and legitimated within racialised constructions of Aboriginal people as inferior, lesser human beings. These racialised constructions of Aboriginality changed during the nineteenth and twentieth centuries from notions of barbarism to views about a race ‘doomed to extinction’, the two competing views were often contemporaneous. However, what is important in the context of policing is that racialised constructions of Aboriginality inevitably facilitated discriminatory intervention, institutionalised and legalised discrimination which reached its peak during the protection period when police were authorised to exercise extensive control over the day-to-day lives of Indigenous people. The importance of history in understanding the present The colonial process relied on terror and brutality, in which police played an important role. The events at places like Forrest


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River and Coniston are recent enough to be still within living memory. The memory of earlier massacres and mistreatment of Aboriginal people has passed from one generation to the next. These events can be placed in a broader political context concerning the claim for Indigenous rights. The history of particular killings is not simply a lesson in Aboriginal–police relations, it is also part of a broader historical claim for Indigenous rights to compensation and reparation for dispossession, as well as ongoing claims to political rights such as self-determination. As will become evident in later chapters, relations between police and Indigenous communities are firmly entrenched within the demands for greater autonomy, self-government and selfdetermination. It is possible to draw some parallels with the history of policing working-class communities around specific issues such as the regulation of public space and the surveillance of families— particularly among those of the working class defined as the ‘disreputable poor’. Police powers in the colonies were quite extensive, particularly in relation to the range of duties and level of surveillance available through legislation such as the Police Act 1833, the Bushranging Act 1834, and the Vagrancy Act 1835, and there was a high ratio of police per head of population in Australia compared to English ratios during the early part of the nineteenth century, with nine to ten times more police per head of population (Neal 1991, p. 155; Sturma 1983). Police magistrates also had the power to summarily judge and punish (Davidson 1991, p. 104). The Royal Commission into Aboriginal Deaths in Custody noted that through protection regimes the police were directly involved in the ‘civilising mission’ of Indigenous people. This involved enforcing work relations and prohibiting movement, and the policing of moral and social standards seen as applicable to the working class more generally (Johnston 1991a, vol. 2, p. 21). The drawing of such parallels runs the risk of disguising the specific nature of the history of policing Indigenous people in Australia, both in terms of the level of violence used against them and in terms of the level of police surveillance which was later developed. Policing Indigenous people was not simply an amplification of the duties which police performed in other areas. The relationship between police and Indigenous people was sui generis for two interrelated reasons. In the first instance, Indigenous people as the original inhabitants and owners of the land provided


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a unique obstacle to the process of land acquisition. In the absence of treaties or negotiated settlements, the land was forcibly taken and there was active resistance to these encroachments. Second, the categorisation of Indigenous people as a distinct racial group of ‘primitive’ people and, increasingly in the second half of the nineteenth century, as a ‘race’ doomed to physical and/or cultural extinction, led to a level of police surveillance and intervention through protection legislation which was not repeated elsewhere. The fundamental control over definitions of identity based on racial categorisation (such as full-blood, halfcaste) and the level of legal intervention activated by these definitions was of a fundamentally different order from the types of decisions made by police in drawing distinctions between the ‘rough’ and ‘respectable’ sections of the working class. Protection legislation provided a legal framework for the dehumanised treatment of Indigenous people—a framework which was, by and large, dependent on the police for its operation. Policing as a practice of government had then a quite particular form which developed within the broader context of colonial expansion and nation-building. The exercise of legal and administrative control over Indigenous people during the nineteenth, and a significant part of the twentieth, centuries occurred as a distinctive type of government refined to deal with what was seen as a unique situation. Within the intellectual confines of various evolutionary schools of thought, Indigenous people were regarded as ‘stone age’ people, as the most ‘primitive’ existing culture, as a ‘link’ within the evolutionary stages of man from the animal world (McGregor 1997). While the precise details of the various evolutionary schema varied, the solutions were remarkably similar and demanded a high level of authoritarian control. The practice of government through policing also centred on the control of movement of Indigenous people. Particularly during the twentieth century, Indigenous people became defined as a public order problem which demanded special policing strategies (such as curfews and the criminalisation of drunkenness). Protection legislation facilitated such intervention, although the more general criminal law has also been broad enough in its ambit to be able to criminalise most forms of public behaviour which might be defined as unacceptable. The maintenance of public order is often defined as a core police function. Such a function, however, was to take on a particular meaning when Indigenous people were defined collectively as a ‘racial’


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group likely to pose a problem of social disorder. Intense surveillance and large-scale intervention has become a significant factor in Aboriginal–police relations, often within the context of policing public order and ‘street offences’; a level of intervention which is contiguous with earlier periods. Finally, we need to acknowledge the role of Indigenous resistance in shaping the nature of colonial policing. Terror became an important tactic as Aboriginal people struggled to maintain their ties to their land. Later, protection legislation and the criminal law were used to maintain the boundaries between colonial and Indigenous societies. While Aboriginal resistance to these racialised boundaries took many forms, depending on time and place, a key response strategy to resistance involved the use of police. At the broadest level, policing operated to maintain the conditions necessary for the development of a colonial society. Policing strategies themselves involved a range of activities, including the administration of legislation and extra-legal and illegal activities. In concluding this chapter it is salutary to note that not all individual police relished the tasks they undertook, however. At a local level a few police officers supported Aboriginal people against the demands of protection policies—sometimes opposing abusive reserve managers, arguing against the ‘resumption’ of Aboriginal land or opposing the stealing of children.17


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4 From over-policing to zero tolerance FROM OVER-POLICING TO ZERO TOLERANCE

The 1960s saw the repeal of significant sections of discriminatory state legislation as part of the general move towards assimilation and integration. Citizenship rights implied equality of treatment, yet it brought with it ongoing mechanisms of police surveillance derived from more than half a century of protection legislation. In addition the movement of Indigenous people into urban areas brought an intensified focal point to Aboriginal–police relations: the policing of public behaviour through ‘street offences’ legislation. During the 1960s laws which enabled Aboriginal men in Western Australia and South Australia to be whipped for breaches of the criminal law or for false statements were repealed. In the Northern Territory the Criminal Code was amended in 1968 so that Indigenous people convicted of murder could receive a ‘just and proper’ penalty instead of the death sentence. In South Australia legislation which required a register of Aborigines to be kept and which enabled forced medical procedures in the case of contagious diseases was dismantled. Yet legislation also remained which continued to discriminate against Indigenous people. In Western Australia, under the Native Welfare Act 1963, the managers of Aboriginal reserves retained wide discretionary powers in their control over Aboriginal people. An offence against the Act carried a fine of up to £50 or six months’ imprisonment. As noted in Chapter 3, the Queensland Aborigines and Torres Strait Islanders Affairs Act 1965 continued, with a highly regulatory regime on the reserves including power over employment, the care of children and the maintenance of discipline and good order. New legislation was enacted in Queensland in 1971, The Aborigines Act 1971 and The Torres Strait Islanders Act 1971, but these laws continued to exercise extensive control over Aboriginal and Torres Strait

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Islander people living on reserve areas, and remained in force until 1984.1 Perhaps what is more pronounced from the 1960s onwards is increased contact between Aboriginal people and police around what are commonly referred to as ‘street offences’, and the politically articulated opposition by Aboriginal people on the basis of civil rights to this type of intervention. The mode of criminalisation changed during this period as the more overtly discriminatory legal regimes were dismantled. During the period of colonisation, which involved open conflict and warfare, Aboriginal resistance had become ‘criminalised’ to the extent that Indigenous rights to land, law and culture were denied. While on the surface Indigenous people were regarded as British subjects, the history of violent repression and large-scale murder shows that the protection offered by British law was routinely ignored. During the period of protection legislation elaborate legislative regimes were created which provided for a system of ‘gulags’ with their own internal mechanisms of criminalisation. Racialised constructions of Aboriginality became the trigger which activated intervention. From the 1960s onwards, the policing of street offences and complaints about police abuses became inextricably intertwined with the demands for civil and political rights by Aboriginal people.2 For instance, the work of the Aboriginal– Australian Fellowship in Redfern was self-consciously based on the assertion of citizenship rights in relation to policing and legal process. One way of achieving this was through embarking on a policy of investigating complaints concerning police actions, including assaults and indiscriminate arrests (Bardsley 1965, p. 15). The situations in north-western New South Wales and in the Sydney suburb of Redfern provide illustrative examples of the changing mode of criminalisation. Contemporary accounts show that complaints concerning Aboriginal people as a ‘law and order’ problem in Bourke, for example, developed in the early 1970s, corresponding with the increasing political organisation of Aboriginal people in the area. Much of the concern about Aboriginal ‘crime’ reflected white anxiety and most of the offences for which Aboriginal people were arrested related to public order. One study at the time concluded that 50 per cent of Aboriginal men in Bourke over the age of fifteen years were arrested at least once in a two-year period in the early 1970s (Kamien 1978, p. 150). Max Kamien, the local non-Aboriginal doctor,


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commented that white stereotypes depicted Aboriginal people as dirty, drunk, unintelligent, lazy and ungrateful, stereotypes which were reinforced in the local media (Kamien 1978, pp. 41–2). Complaints about Aboriginal people as a law and order problem in the area have continued ever since, and were responsible for a number of state government inquiries into ‘crime’ in the region.3 Similarly, Aboriginal–police relations in Redfern became an issue of public concern during the 1960s. The Aboriginal– Australian Fellowship and the New South Wales Council for Civil Liberties were involved in a number of important cases over the abuse of police powers in the Redfern area.4 Indeed, complaints concerning police activities against Aboriginal people in Redfern and allegations of discriminatory police methods led to the establishment of the first Aboriginal Legal Service (ALS) in 1970. During the 1960s and 1970s Aboriginal people claimed that in Redfern they were regularly arrested without cause, particularly around the Empress and Clifton Hotels, and that they were the subject of a police-imposed curfew.5 In 1970, [then] Justice Wootten noted that, I found, as most people do, it [the curfew] a little hard to believe when I first heard it, but when I observed it operating with my own eyes, I was left with little doubt. The simple position was that any Aboriginal who was on the streets of Redfern at a quarter past ten was simply put into the paddy wagon and taken to the station and charged with drunkenness, and that was something that was just literally applied to every Aboriginal walking along the street, irrespective of any sign of drunkenness in his [sic] behaviour. This and the associated problems gave rise to very strong feelings among Aboriginals here (Wootten 1974, p. 60).

Aboriginal activist Gary Foley has described the Aboriginal initiatives behind the establishment of the ALS. The service, run initially as a voluntary agency, represented the ‘birth of the modern day Aboriginal political movement’ (Foley 1988, p. 109). Khoury has argued that the ALS transcended ‘conventional systems of service delivery’ through its broader advocacy of Aboriginal rights and empowerment (Khoury 1996, p. 180). Aboriginal people in Redfern complained of policing strategies used against them, including the use of violence and provocation by police and specialist police squads such as 21 Division.6 At the time, the New South Wales Bureau of Crime Statistics


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and Research indicated that Aboriginal people were overrepresented in the Central Local Court by a factor of 10.7 compared to their population in the inner city. Furthermore, 63 per cent of offences for which Aboriginal people were convicted were for ‘unseemly’ words and vagrancy—this figure was double the proportion of such convictions for the non-Aboriginal inner-city population. During the 1980s there were regular reported ‘clashes’ between Aboriginal people and the police in Redfern, confrontations which often involved squads of police officers and, by the second half of the 1980s, the Tactical Response Group. Some of these confrontations were subject to investigation by the Aboriginal Legal Service and the New South Wales Council for Civil Liberties. Specific complaints included the misuse of the Intoxicated Persons Act,7 assaults and provocation by police, the removal by police of their identification numbers, the failure of the police to contact the Aboriginal/Police Liaison Unit until long after the disturbances were over, and the ill-treatment of doctors who attempted to examine those arrested. Similar examples can be found in Western Australia. The Laverton (Skull Creek) incident in 1975 became a welldocumented incident of police over-reaction to Indigenous people. Ceremonial requirements meant that a large number of Indigenous people from surrounding areas were to meet at Laverton. Police decided to block the arrival of 76 Aboriginal men, women and children from Warburton. A later Royal Commission held into the events found that the mass arrests which occurred were unjustified, and that police had made false statements concerning the reason for intervention. However, no recommendation was made that charges be laid against police (Foley 1984; Finnane 1994, pp. 125–7). One outcome of the Royal Commission was the establishment of a Special Cabinet Committee on Aboriginal–Police and Community Relations, composed of representatives from various Western Australian government departments and Aboriginal organisations.8 Roebourne in Western Australia was for a long period the centre of complaints about policing. Edmunds discusses the ‘relentless interference and pettiness’ in the interactions between Aboriginal people and police in the town (1989, p. 95). According to Edmunds, the legal system is a source of constant surveillance and the police play an essential role in the process of identifying Aboriginal people as a highly visible group, imposing conformity


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to non-Indigenous standards and creating social and legal relationships which resemble life in a ‘total institution’. The Royal Commission into Aboriginal Deaths in Custody investigation into the death of John Pat in Roebourne in 1983 shows a not untypical scenario of policing in Aboriginal communities (Johnston 1991b). Police patrolled the town every fifteen minutes to an hour, particularly around the riverbank and the hotel. They often entered the hotel to ‘show the flag’, as one police officer put it. (Such a metaphor captures succinctly the image of an occupying colonial force.) Hostility was apparent. The circumstances leading to the death of John Pat show how intense surveillance, resentment and provocation can spill over into open confrontation. An Aboriginal person was provoked into a fight by an off-duty police officer, which led to other Aboriginal people and police becoming involved. Several Aboriginal people were arrested and a number were later assaulted by police officers while in custody. John Pat, a 16-year-old Aboriginal boy, died of head injuries in the police cells. Five police officers were charged and stood trial for his unlawful killing. They were acquitted by twelve non-Aboriginal jurors. Localised events and the recent background to Aboriginal– police relations in places like Bourke or Roebourne, Laverton or Redfern, provide an important window on Aboriginal–police relations at the microsocial level. While the depiction of individual policing incidents such as a death in custody or a particularly notorious police ‘raid’ may appear as isolated cases, it should be recognised that these events are interpreted quite differently by Aboriginal people living in these communities. For example, Aboriginal people living in Redfern have seen a continuity in the way police respond to them, particularly within a context of constant police surveillance and police patrols. The more notable incidents which receive public attention are themselves located within this context of day-to-day policing. An understanding of the politics and history of policing at the local level is particularly important in recognising why Aboriginal people feel the way they do about the police as the institutional force of a colonising society. While police officers come and go from various communities after relatively short periods of time, Aboriginal people are much more closely tied to particular areas and maintain an understanding of the local history and local events which provides the context through which present-day events are interpreted.


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OVER-POLICING The policing of street offences by Aboriginal people became increasingly contentious during the 1980s and 1990s, and focused on what came to be referred to as the ‘over-policing’ of their communities.9 The reports of national inquiries such as the Royal Commission into Aboriginal Deaths in Custody (Johnston 1991a) and the Human Rights and Equal Opportunity Commission’s (1991) National Inquiry into Racist Violence, as well as numerous state reports and academic literature, all drew attention to the critical situation of Aboriginal–police relations.10 The concept of over-policing identifies the way Aboriginal people and Aboriginal communities are policed differently, and more extensively, than non-Indigenous communities. At its simplest, the phrase has been used to refer to the number of police in Aboriginal communities in comparison with other areas, but it has also been noted that over-policing refers to both the degree and the nature of police intervention (HREOC 1991, pp. 90–4). The degree of intervention can be demonstrated through the number of police stationed in areas with large Aboriginal communities and through the type of specialist police used to control these communities (such as Tactical Response Groups in New South Wales and Western Australia). Over-policing can also be seen in the nature of intervention through the use of particular policing practices. Finally, over-policing draws attention to the role police have played historically in the extensive regulation and surveillance of the lives of Aboriginal people, through control over movement and social and familial relations during the period of protection legislation. In this sense, the notion of over-policing is grounded in the Indigenous experience of the criminal justice system, articulating an important part of the lived experience of being policed. Over-policing was raised as a serious issue in a large-scale investigation by the New South Wales Anti-Discrimination Board of the policing of street offences in New South Wales during the early 1980s (ADB 1982). The report noted that over-policing of Aboriginal communities occurred by way of the continual and repeated arrest of a high proportion of Aboriginal people for trivial offences. The report found that Aboriginal people were ‘subjected to continuous police surveillance which alone constitutes an harassment by ordinary standards’, and were ‘subjected to a greater degree of supervision over their lives and lifestyles.


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This is wholly disproportionate to that experienced by any groups in the non-Aboriginal community and occurs in the most intimate part of their lives’ (ADB 1982, pp. 113–14). Five years later the issue of over-policing in north-western New South Wales was raised in a report by the New South Wales Bureau of Crime Statistics and Research (Cunneen and Robb 1987). The report showed high over-representation of Aboriginal people for criminal charges like assault police, hinder police, resist arrest and offensive behaviour, and that these offences were also those most likely to arise from police intervention. Thus, the level of policing was directly related to the number of charges for offences against public order. Similarly, the Royal Commission into Aboriginal Deaths in Custody noted the ‘massive police presence’ in areas like Bourke and Wilcannia, and that some observers saw this presence as a cause of, rather than a limitation on, crime. ‘A major offence in Wilcannia is swearing at police. Arrests for swearing at police often arise as police constantly drive up and down the main streets of the town constantly scrutinising the Aboriginal population’ (Wootten 1991a, p. 301). Similar concerns with over-policing were raised in a Western Australian Aboriginal Legal Service report on Wiluna. In 1994 Wiluna had a population of about 250 of whom 200 were Indigenous Mardu people. The report found that in a seven-month period over 1000 charges were laid against 297 persons (99 per cent of whom were Aboriginal people). Almost 80 per cent of the charges were for street offences. Nearly $200 000 in fines were imposed on the community during the period. On average there were 23 people in the police cells each day of whom seventeen were there because they could not pay fines. The report also found that the officer in charge was receiving a daily meal allowance of over $13 per prisoner (although the common fare provided to Aboriginal prisoners was kangaroo meat). The Aboriginal Legal Service estimated that the officer in charge was receiving an average of $96 000 per year in allowances arising directly from the incarceration of Mardu people (Leicester 1995, pp. 16–19). Police numbers One of the first attempts to quantify the rate of police per head of population in areas with high numbers of Aboriginal people was made in the early 1980s by the New South Wales AntiDiscrimination Board (ADB 1982). The rate of police per 1000


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Table 4: Police numbers in Aboriginal towns, New South Wales, 1986–90

Town Bourke Brewarrina Walgett Wilcannia NSW

May 1986

March 1990

Approx. town population

26 7 17 6 10 743

30 11 26 11 12 427

3400 1600 2500 800 5 701 500

1990 Ratio police/ population 1:113 1:145 1:96 1:73 1:459

Sources: NSW Police Department, ABS, Local Councils (HREOC 1991, p. 92).

of population in New South Wales was compared for a number of centres. It was found that the rates in Bourke, Moree, Walgett, Brewarrina and Wilcannia/Central Darling (where there were significant Aboriginal populations) were twice or greater than the state average (ADB 1982, p. 239). Calculations of police numbers in Aboriginal communities in New South Wales were also made by the National Inquiry into Racist Violence, as shown in Table 4. The disproportionate numbers of police in the so-called ‘Aboriginal’ towns is clearly shown. All these towns have significantly greater numbers of police per head of population than the state average. Both the Royal Commission into Aboriginal Deaths in Custody and the International Commission of Jurists have commented adversely on the heavy police presence in Bourke, Brewarrina and Walgett, particularly compared to the state average and to predominantly middle-class suburbs like Chatswood, a suburb of Sydney where the ratio was 1:926 (ICJ 1990, p. 340; Wootten 1991a, p. 301). The Royal Commission into Aboriginal Deaths in Custody also examined policing levels in a number of country towns in Western Australia, primarily where Aboriginal deaths in police custody had occurred. Commissioner Johnston drew on work by Broadhurst concerning Broome where, as police numbers doubled during the 1970s and early 1980s, the number of Aboriginal people arrested also doubled (Johnston 1991a, vol. 3, p. 40). This scenario of increasing police numbers and increasing levels of arrest is similar to what was occurring in north-western New South Wales during the same period. The data on the ratio of police to population thus indicate that communities with a high proportion of Aboriginal people


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also have high rates of policing. In Wiluna, where 63 per cent of the population is Aboriginal the ratio of police to population is 1:74; in Halls Creek the Aboriginal population is 61 per cent and the ratio is 1:196; in Roebourne the Aboriginal population is 47 per cent of the total and the ratio 1:127. For Western Australia as a whole the policing ratio is 1:395 (O’Dea 1991, p. 213). Commissioner O’Dea noted that ‘the figures suggest that in towns with a high proportion of Aboriginal people the ratio of police officers to population is higher than in towns with a small Aboriginal population’ (1991, p. 213). Such a finding parallels the New South Wales situation, and is likely to be repeated in other Australian jurisdictions. Resource allocations How do police organisations allocate personnel and other resources to particular areas? Generally speaking, decisions concerning police numbers rely on a system of measuring workload and allocating resources accordingly. Workload analysis typically includes the measurement of activities such as charges, intoxicated persons, telephone messages, occurrence pad entries, crime reports, motor vehicle accidents, stolen vehicles, deaths requiring coronial investigation and missing persons. While some of these categories may be taken, at least partially, to reflect the occurrence of crime, others such as charges, reported offences, intoxicated persons and occurrence pad entries will be influenced by the social dynamics of policing practices in particular communities. It is important to recognise that despite what might appear to be objective administrative criteria in allocating resources, the inherently discretionary nature of policing will directly affect any model for workload measurement. It has long been established that policing strategies such as targeting particular offences or particular groups will have amplificatory effects. Proactive policing will generate much of its own workload (Grabosky 1989, p. 165). In towns with large Aboriginal populations, proactive policing, given the nature of Aboriginal–police interaction, is likely to amplify conflict between the groups and thus justify further police intervention. Such intervention may in itself lead to the conclusion that more authoritarian and reactive styles of policing (such as the use of tactical response police) are the most appropriate policing strategies. Political lobbying can also influence the allocation of police


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resources. For example, the increased level of policing in Bourke (noted in Table 4) arose partly as a result of lobbying by the local Shire Council and Chamber of Commerce over the ‘crime problem’ in the area. Indeed, the continual political lobbying around law and order issues over the period 1976 to 1986 had seen the number of police in Bourke doubled from thirteen to 26, while the town’s population remained stable at a little over 3000 persons. The decision to operate a 24-hour police station in the town arose as a result of political lobbying rather than simple workload considerations. Once the 24-hour station became operational there was a need for greater police resources.11 The Royal Commission into Aboriginal Deaths in Custody examined the allocation of police resources in Western Australia (O’Dea 1991, pp. 210–19). The Commission requested information from the Western Australian Police Department regarding the process by which the number of police officers needed at particular stations was determined. The Department responded that the criteria were based on: (a) Existing staff (b) Work load at station, section or unit (c) Work load comparison with other similarly situated areas (d) Work load trends (e) Traffic accident rates (f) Traffic density rates (g) Traffic contact rates (h) Population change and trends (i) Population type, e.g. Aboriginal, tourist (j) Tourist rates (k) Industrial development (l) Information supplied by regional or divisional officers (m) Any other relevant information (O’Dea 1991, p. 211).

Much of the criteria set out above is similar to workload measurement in New South Wales. The Royal Commission requested clarification of how ‘population type’ could be used to allocate resources. The response was that the ‘Tourist population normally influxes at specific times of the year . . . [these] can be catered for by temporary increase instead of permanent staff allocations. Similarly Aboriginal population can be nomadic and affect different areas as they move from town to town’ (O’Dea 1991, p. 211). Such reasoning might provide for the allocation of extra policing resources on a temporary basis, but would hardly


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account for the permanent deployment of greater police numbers in Aboriginal communities. Maintaining a strong police presence in Aboriginal towns demands resources. The Royal Commission into Aboriginal Deaths in Custody estimated the cost of ‘bringing justice’ to the approximately 800 Aboriginal people in Wilcannia to be around $1.5 million per year. State and territory police departments are among the largest public sector agencies in their respective jurisdictions. At the most general level, the amount of public funds allocated to policing is a political decision made by government. However, it is important to recognise that political decision-making extends deeply into the way police work and the organisation allocates its resources. Many decisions which have traditionally been defined as ‘operational’ in reality require judgements about social values, the balancing of competing interests, and the allocation of resources. The relative priorities accorded areas such as juvenile crime, domestic violence, community policing and so on, are strategic choices which have resource implications (Grabosky 1989, p. 159). The allocation of policing resources to areas with large Aboriginal populations similarly reflects strategic choices, which can invariably be justified or rationalised through various workload measurement techniques. There is also a far more political process in train, which includes pressure from sections of the non-Indigenous community for the police to respond to Aboriginal people in certain ways. The Royal Commission into Aboriginal Deaths in Custody recommended that police services examine, in collaboration with Aboriginal organisations, whether there is overpolicing or inappropriate policing of Aboriginal people and whether there is sufficient emphasis on community policing.12 The allocation of police resources in small country towns with large Aboriginal populations inevitably leads to a focus on public order offences which can exacerbate local tensions and result in a large number of arrests for trivial offences. The Royal Commission into Aboriginal Deaths in Custody noted that in the great majority of cases, Aboriginals come into custody as a result of relatively trivial and often victimless offences, typically street offences related to alcohol and language. Many of these ‘offences’ would not occur, or would not be noticed, were it not for the adoption of particular policing policies which concentrate police numbers in certain areas, and police effort on the scrutiny of Aboriginals. The concentration of large numbers of police is itself a result


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of the fact that Aboriginal communities are seen as troublesome, untrustworthy and given to criminal conduct. The presence of police in large numbers leads to innumerable further trivial charges, creating a vicious circle in which Aboriginals are criminalised (Wootten 1991a, p. 268).

Through following this avenue of analysis, we can trace the link between the mundane issues of day-to-day policing in Aboriginal communities and the broader institutional processes which structure relations between Aboriginal people and the state. At its broadest, the level of policing in Aboriginal communities can be seen as a form of institutional racism which is capable of producing racist outcomes such as the over-representation of Aboriginal people in custody. The link between over-policing and racism was considered by the New South Wales Ombudsman in a recent report on race relations and the police. After noting that towns like Wilcannia should have one-quarter of their existing level of police personnel, the Ombudsman stated that the long-term solution will require the application of appropriately trained non-police resources. ‘In Wilcannia the real question is why has it been left to police to contain the problem by trying to arrest it or move it on’ (NSW Office of the Ombudsman 1994, pp. 47–8). One answer to the Ombudsman’s question is that, historically, Aboriginal people have been defined as, and are now seen as, essentially a ‘criminal problem’ to be addressed through police intervention.

POLICING SOCIAL AND CULTURAL LIFE Much of the critical literature on policing Indigenous people in Australia has analysed the policing of Indigenous social and cultural life.13 The 1982 report by the Anti-Discrimination Board drew attention to the enforcement of ‘community standards’ which in practice involved denigrating Aboriginal culture and placing Aboriginal people in a subservient position to the dominant society. In the language of then current racist discourse, a good Aboriginal person was one who was ‘reasonably well-behaved’ and ‘stays in their place’ (ADB 1982, pp. 128–32). Indeed, the policing of Indigenous social and cultural life provides an important historical continuity in police function. One approach to understanding this aspect of policing Aboriginal people is through the notion of ‘social visibility’.


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Certainly the historical and contemporary record shows that the popular ‘remedy’ for the Aboriginal ‘problem’ has rested on the assumption that social order for European society would be ensured if Aboriginal people were made ‘invisible’ through greater policing of the streets and the imposition of curfews and other restrictions on civil liberties. There has been an underlying belief that if Aboriginal people were removed from ‘public’ places then law and order could be maintained (Cunneen and Robb 1987, pp. 192–3). Edmunds (1989) draws on the work of Foucault, and makes the observation that the law, and policing in particular, enforces a type of ‘compulsory visibility’ on Aboriginal people. This intense surveillance occurs through the sheer ubiquity of police in small communities, but also through the definitional division between public and private behaviour which in effect criminalises the public nature of Aboriginal life. Policing acts as a ‘normalising’ force which imposes the standards of sections of the non-Indigenous society as a universal norm. Excluded from the private venues of non-Aboriginal Australia, Indigenous social life becomes subject to regulation—not under the ‘special’ legislation of the protection era, but under the general criminal law covering alcohol consumption, language and other aspects of public behaviour. The National Inquiry into Racist Violence dealt in some detail with the issue of over-policing and Aboriginal social and cultural life. Many of the forms of surveillance and intervention were also documented in various reports of the Royal Commission into Aboriginal Deaths in Custody.14 The types of policing practices complained of to the National Inquiry into Racist Violence included spotlighting in particular communities and constant patrols in particular streets and neighbourhoods. At various times these same complaints have emerged from Aboriginal communities all over Australia—from Darwin to Redfern, from Mareeba to Geraldton (HREOC 1991; Cunneen and McDonald 1997a). Constant patrolling, combined with the practice of placing spotlights on individuals or houses, is both intrusive and intimidatory. Other evidence before the National Inquir y into Racist Violence included constant ‘stops’ of Aboriginal people by police, the use of police dogs in particular communities, day and night entry into houses without warrants, assaults, harassment and unjustified arrests (HREOC 1991, pp. 82–8). Evidence of unjustified and violent intervention by police at Aboriginal social events was also presented to the National Inquiry


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into Racist Violence (HREOC 1991, pp. 86–8). Several incidents stand out as indicative. In Adelaide evidence was presented by a minister of the Uniting Church who attended an Aboriginal sports carnival. He stated that the event was organised and policed by the community in an ‘efficient and relaxed way’. He attended a social event following the carnival at a local hotel and on leaving was confronted by ‘probably a dozen police paddy wagons with a double phalanx of police, most of them with Alsatians [sic] straining at the leashes’. The night ended without confrontation only because of the level of Aboriginal organisation at the time, but the minister stated that he sensed ‘the disappointment of the police that nothing had happened’. Two incidents in Brisbane where police had intervened unnecessarily and harshly at Aboriginal social events were also commented upon. At Rosalie in 1986 large numbers of police and police dogs intervened at a football presentation night, and at Annerley in 1987 police intervened at a twenty-first birthday party held in a local hall. Statements from those present at the evening in Annerley indicated that police indiscriminately used batons, while other persons were kicked and had their heads banged against police vehicles. In both the Annerley and Rosalie incidents many witnesses claimed that the so-called ‘riots’ occurred as a direct result of unnecessary police intervention, provocation and the use of excessive force.15 Street offences Much of the debate about the control of behaviour in public places is encapsulated in concerns that Aboriginal people are continually being arrested for ‘street offences’, many of which are ‘directed’ against police. This issue was demonstrated graphically in the survey of the Anti-Discrimination Board on street offences by Aboriginal people. The report found in the Aboriginal communities surveyed that in 61 per cent of offensive behaviour charges under section 5 of the (then) Offences in Public Places Act 1979, the behaviour complained of was the use of ‘unseemly words’. In 75 per cent of those cases, the victim of the words was a police officer (ADB 1982, pp. 40–2). In other words, police initiated the intervention and were then the victim of the offence. The International Commission of Jurists’ inquiry in western New South Wales noted the substantial volume of street offences. ‘Many of the incidents, by objective standards, appear to be quite minor. An examination of the facts . . . suggest that proceedings


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are often commenced in circumstances where alternative resolution may have been more appropriate’ (ICJ, 1990, pp. 28–9). The National Inquiry into Racist Violence received widespread evidence of discriminatory police practices against Indigenous people in public places. In one case, a worker with the South Australian Aboriginal Sobriety Group (which attends to homeless and intoxicated people) was arrested and charged with loitering while he was on duty in the Hindley Street area of Adelaide. A Queensland police officer gave evidence concerning the local sergeant in Camooweal, who detained Aboriginal people in the police cells ‘just to keep them out of the way’. Another Queensland police officer related knowledge of the arrest of Aboriginal people on drunkenness charges when the individuals concerned were not drunk (HREOC 1991, pp. 85–6). In an incident in January 1990, a solicitor and field officer from the Brisbane Aboriginal and Islander Legal Service and the author were threatened with arrest when the solicitor attempted to take photos of police activity outside a hotel popular with Aboriginal and Torres Strait Islander people—the Prince Consort’s Hotel in Fortitude Valley, Brisbane. At hotel closing time fifteen police lined the footpath at the entrance and proceeded to arrest Aboriginal patrons as they left.16 The arrest of Indigenous people for public drunkenness and other public order offences including offensive language, offensive behaviour and vagrancy was of particular concern to the Royal Commission into Aboriginal Deaths in Custody because many of the deaths in police custody occurred after the person had been detained as a result of public disorder.17 In several cases, assumptions made by police and others about a state of ‘drunkenness’ resulted in the denial of basic medical treatment. The death of Charlie Kulla Kulla in Coen, far north Queensland, is a case in point. Kulla Kulla was admitted to hospital on a Saturday morning, at 9.35 am, by members of his family in a seriously ill condition. It was assumed by medical staff that he was drunk and there was no proper diagnosis of his condition—despite his complaints about pain. Although he was not troublesome in any way at the hospital, the police were called; they too assumed that he was drunk and proceeded to arrest him as he lay on a hospital trolley. He was taken and placed in the police watch-house with eighteen other men and women, all but one of whom were incarcerated for public drunkenness. The local sergeant decided that those arrested over that weekend would not be allowed bail. Charlie


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Kulla Kulla died in the watch-house the following day from lobar pneumonia (Wyvill 1990). The Royal Commission into Aboriginal Deaths in Custody reports are littered with the tragic loss of life caused by the mixture of institutionalised racism and callous and inappropriate policing. The final report of the Commission argued that there was enormous potential to divert Indigenous people from police custody, given that the majority were held in police cells and lock-ups as a result of public drunkenness and other public order offences. The Commission viewed the decriminalisation of public drunkenness, accompanied by the establishment of a sufficient number of alternatives to the police cells (sobering-up facilities), as the most important diversionary measure to the use of police custody. A recent review of the implementation of the Royal Commission recommendations relating to public drunkenness shows, however, that there remains a chronic lack of communitybased alternatives to custody in all states and territories, irrespective of whether drunkenness has been decriminalised (Cunneen and McDonald 1997a, pp. 105–13). In jurisdictions like the Northern Territory, where drunkenness is not a criminal offence, Aboriginal people comprise over 90 per cent of people placed in ‘protective’ custody. In states where public drunkenness is still a criminal offence, Indigenous people are over-represented in arrest figures. For example, in Victoria Aboriginal people are fifteen times more likely to be arrested for public drunkenness than non-Aboriginal people. Arrests are particularly concentrated along the Murray River region between Mildura and Swan Hill where 40 per cent of all Indigenous arrests occur. The circumstances surrounding at least some arrests still raise serious questions of discrimination. For example, Njiku Jowan, the Aboriginal and Torres Strait Islander Legal Service covering the Cairns area, represented six Aboriginal people who were charged with public drunkenness. The group were picnicking by a creek outside Mareeba when they were arrested. There were no other people present in the area—only the police who arrived to arrest them. The group were fined $100 each plus court costs.18 Other public order charges frequently laid against Aboriginal people include offensive language, offensive behaviour and vagrancy charges. The Royal Commission investigations revealed that these charges could result in imprisonment either through a sentence imposed by the court or by way of fine default. Police use of criminal charges for offensive language is seen by many as


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hypocritical, particularly as police have been demonstrated to frequently use language which, when used by an Aboriginal person, would lead to an arrest and charge.19 There have been several notorious cases over the last decade involving the inappropriate use of offensive language and offensive behaviour charges by police, which have, in some cases, led to imprisonment. For example, during 1989 a number of Aboriginal people in Bourke were sentenced to imprisonment for offensive language, the longest sentence imposed being two months’ hard labour. In that particular case a 33-year-old Aboriginal man was charged with offensive language after referring to a police officer as ‘prick face’ and ‘shit head’. At the time of the incident the man was buying food from a takeaway shop when he was approached by the officer. The officer allegedly asked the man, ‘how he was going’. The words complained of were used in reply. The Western Aboriginal Legal Service appealed against the magistrate’s sentence and the appeal was upheld in Bourke District Court in February 1990, the sentence being reduced to a 75-hour community service order. The incident was trivial, but the response shows the weight of surveillance and disciplinary responses by the state. Two other cases of offensive behaviour involving Aboriginal people in Walgett and Bourke are worth noting. In August 1988, an 18-year-old youth in Walgett was arrested and charged with offensive behaviour because he was wearing a T-shirt which highlighted Aboriginal deaths in police custody. In Bourke a youth wearing a T-shirt with the same design was arrested and charged with offensive behaviour after he went to the police station to complain that he had been assaulted. The matter in Walgett was thrown out of court, with the Chief Magistrate declaring there was no case to answer. In Bourke the police decided not to proceed with the charge. These matters are interesting in drawing out the intersection between the day-to-day oppressive policing of Aboriginal people and the blatant political decision by police in these towns to stifle expressions of support by Aboriginal people for the Royal Commission into Aboriginal Deaths in Custody—particularly given the number of deaths in police custody which had occurred in the north-west of the state.20 Charges for street offences continue to be an issue for Aboriginal people throughout Australia, and there was a perception that, at least during the late 1980s and early 1990s, the number of Aboriginal people charged with these types of offences was on the increase.21 Many of these charges involve the so-called ‘trifecta’


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of assaulting police, resisting arrest and offensive language. The concern with these charges is that they arise directly from situations initiated by police. In other words, the police approach the person for some reason and then become the victim of the three offences. Similarly, there are complaints concerning the way offensive behaviour charges are used. For example, in Alice Springs police have to go out of their way to observe the behaviour of Aboriginal people living in the Todd River, who complain they are then charged with offences relating to such matters as urinating in ‘public’. In these situations, along with charges for vagrancy in those states where it is still an offence, it is the poverty and homelessness of Aboriginal people which is being criminalised. In New South Wales, recent research by the Bureau of Crime Statistics and Research on the use of street offences legislation (Jochelson 1997) found that local government areas with high Aboriginal populations such as Bourke, Brewarrina, Walgett and Central Darling (Wilcannia) had much higher rates of court appearances for offensive language, offensive behaviour, resisting arrest and assaulting police than the state average.22 Ultimately, the Royal Commission into Aboriginal Deaths in Custody took a conservative position and did not recommend the repeal of legislation which criminalises ‘offensive’ language. It did, however, recommend that offensive language charges be monitored and they not be used where intervention was initiated by police. State and territory responses to this recommendation have been disappointing. No jurisdiction has yet established a systematic method for monitoring the use of offensive language charges against Aboriginal people, although research continues to indicate that charges of this nature are a problem (Cunneen and McDonald 1997a, p. 114).

PARAMILITARY POLICE AND PUBLIC ORDER Another aspect of over-policing is the nature of the police response to social disturbances, and their potential role in exacerbating existing tensions. Of concern in this respect has been the utilisation of police Tactical Response Group (TRG) squads in Aboriginal communities, particularly in New South Wales and Western Australia. The use of specialist squads coincided with a general reorganisation of policing, including the establishment of permanent paramilitary groups such as the TRG. Such tactical


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groups typically have a number of functions including riot control and public order policing. The New South Wales TRG was formed in 1982, allegedly as a response to riots at the Bathurst motor cycle races. However, the TRG soon developed its own executive, administrative, operational and training components and their role as a specialist riot control group became institutionalised within the state’s policing apparatus. The TRG also grew in size and increased its operational duties during the 1980s. An important part of this expansion in duties included the policing of Aboriginal communities.23 The use of the TRG was the subject of controversy from the outset. Shortly after the group was established, the Police Association requested the New South Wales Police Service to form TRG units in Moree and other north-western towns. Moree was itself the site of intense conflict between Aboriginal people and police during the early 1980s, particularly after the shooting of a young Aboriginal man, Cheeky Macintosh. Police management rejected the Association’s request, noting that the use of the TRG ‘at Moree or other country centres where racial problems exist could lead to feelings of provocation on the part of some people and lead to unnecessary confrontations’.24 By the mid-1980s, however, management had changed its approach, at least to the extent that it became acceptable to fly in TRG police squads specifically to control Aboriginal people in rural areas. The change indicated an important shift in policy which legitimised the reliance on proactive, paramilitary police squads to maintain order. The first recorded use of the TRG specifically for the policing of Aboriginal people was in Bourke in August 1986. TRG personnel were flown into Bourke after a disturbance and were on hand to police a demonstration by Aboriginal people concerned with perceived discrimination by the criminal justice system. Aboriginal people in the town saw the use of the TRG as further representation of their more punitive treatment by police. A report at the time argued while the TRG might quell resistance in the short term, in the longer term tension and conflict would be exacerbated (Cunneen and Robb 1987, p. 222). The following year (August 1987) the TRG were flown into Brewarrina to conduct street patrols after an Aboriginal man, Lloyd Boney, was found hanged in the police cells. The TRG made regular patrols, marching up and down the main street of the small town four abreast, carrying long batons. The squads were rotated every 48 hours, with new TRG members flown in. Argu-


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ably, it was their presence straight after the death in custody which provoked a serious confrontation later to become known as the Brewarrina riots (Goodall 1990b). From then until the early 1990s the TRG were used on numerous occasions in the policing of rural and urban Aboriginal communities, including Bourke, Brewarrina, Walgett, Dubbo, Wilcannia, Cobar and Redfern. Visits by the TRG to rural towns often followed complaints by local non-Aboriginal business proprietors and politicians about the breakdown in law and order. The Royal Commission into Aboriginal Deaths in Custody also noted that the use of the TRG in western New South Wales had been a ‘particular source of tension’ in the area (Wootten 1991a, p. 303). There was also increased use of the TRG in Redfern during the late 1980s. For example, in September 1988 approximately 50 TRG officers in riot gear confronted Aboriginal people there. During the following week the Attorney-General specifically referred to the Redfern ‘riot’ and announced more punitive laws relating to public disorder—with the clear implication that Aboriginal people were one group for whom the new legislation was intended.25 During its hearings in 1989 and 1990 the National Inquiry into Racist Violence received substantial evidence concerning the role of TRG police in Aboriginal communities, particularly in Western Australia and New South Wales. In hindsight, however, it was the use of the TRG in Redfern on 8 February 1990 in the so-called ‘Redfern Raid’ which marked a turning point in their use in Aboriginal communities, at least in New South Wales. Some 135 police were involved in a pre-dawn raid which netted no serious arrests. Details of the tactics used in that raid are discussed in Chapter 5. For our current purposes it is useful to analyse the interweaving of ideas about community, paramilitary police strategies and notions of ‘race’ in the rationale for the use of the TRG. The most detailed justification for the Redfern raid came from the (then) Minister for Police and Emergency Services, Mr Ted Pickering,26 based on a police report which stated in part that the main reason for the operation was ‘the despairing cry for help from the Aboriginal community. The Aboriginal community expressed a grave concern with the upsurge of criminal activity, which they feel is directly attributable to the increase in the usage of hard drugs’. The official reason for the ‘operation’, as the raid was called, was to ‘protect the law-abiding citizens’. Those who criticised the raid were separated from the ‘law-


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abiding’ majority in the Aboriginal community, who according to the Minister, ‘will not be complaining about the police raids as damaging to relations between the Aboriginal community and police’. Such a simple polarisation of views deflected criticism of the nature of police practices in Aboriginal communities. Members of the Aboriginal community were both concerned about the use of drugs in their community and critical of police tactics. Indeed, on 6 February 1990, two days before the raid, the Royal Commission into Aboriginal Deaths in Custody had held a community meeting in Redfern which showed that many people were critical of both policing strategies and the level of crime in the community. The same points were made by many Aboriginal people who attended a protest meeting immediately after the raid occurred. Perceptions that Aboriginal people were being subjected to a particular type of paramilitary policing on the basis of their ‘race’ was reinforced when police further attempted to justify the raid. The (then) Sydney District Police Commander, Alf Peate, was reported as referring to the Redfern Aboriginal community as ‘one breed’ where normal surveillance and policing activities do not operate. ‘Race’ was here used as a predicator of special social characteristics which implied a social abnormality. The community itself was defined in a particular manner for the purposes of policing, rather than any alleged criminals within the community. The policing operation was, from its inception, designed as an operation in relation to a particular racially-defined community rather than a series of individuals. A report on the raid, commissioned by the National Inquiry into Racist Violence, argued that it was appropriate to recognise policing practices in Redfern as an example of institutional racism where the perceived difference of the Aboriginal community was used to legitimise an exceptional use of state force. The report recommended a review of the use of the TRG in Aboriginal communities and the apparent reliance by the TRG on the use of excessive force. The report also examined the recent history of policing in Redfern and found that the Inquiry was ‘open to conclude that over-policing of the Redfern Aboriginal community occurs’ (Cunneen 1990a, pp. 33–6). Analysis of the Redfern raid shows the interlinking of the issues of over-policing, use of specialist paramilitary squads like the TRG and institutional processes of racism. Rationales for the raid demonstrated how notions of ‘race’ and Aboriginality could


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be utilised to justify the use of particular policing strategies. Aboriginal people were being stereotyped in a particular way as a community, a stereotype which apparently justified reliance on excessive force. The use of paramilitary police squads was recognised as a significant problem by both the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence. Indeed, recommendation 61 of the Royal Commission (Johnston 1991a, vol. 5, p. 82) called for a review of the use of paramilitary squads in Aboriginal communities. Certainly the public outcry which accompanied a number of bungled TRG raids in New South Wales led to a review of the procedures governing the use of the group. By the mid-1990s they had been disbanded and reorganised with the Special Weapons and Operations Squad (SWOS) to form the State Protection Group (SPG). In Western Australia there have been continuing calls for an inquiry into the state’s TRG after bungled raids and police shootings. Some of these incidents involved Aboriginal people, the case of Aboriginal actor Rhonda Collard being an illustrative example. She claimed to have been terrorised by TRG police, forced out of her car and made to lie on the street with shotguns aimed at her head. She was never charged with any offence.27 Probably the longest running series of complaints about the use of the TRG in Western Australia against an Aboriginal community has involved the Swan Valley Nyungah community at Lockridge. Large-scale police raids involving TRG personnel have taken place on numerous occasions between 1989 and 1996. Details of the tactics employed will be discussed in Chapter 5. It is worth noting that, like the Redfern ‘raid’, these raids were often premised on the execution of warrants for a few stolen goods and involved in many cases dozens of police officers.28 More recently, the Western Australian TRG have allegedly been used to implement Homeswest policy on eviction of public tenants from their houses. One Aboriginal family who refused to leave their home when issued with a termination notice were evicted by a bailiff supported by an armed squad of police and nine police vans. In another case, a sixteen-member police riot squad was used to evict another family (Cunneen and McDonald 1997a, pp. 65–7). In addition to the use of TRG personnel in Aboriginal communities, a significant development in paramilitary policing has been the issue of riot gear to general duties police, particularly those stationed in rural areas. The frequency of the use of long


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batons and shields in policing Aboriginal communities led to complaints in early 1988 from the Western Aboriginal Legal Service. The Service stated that incidents where riot gear was used were commonplace and often ended in violence, and were indicative of the use of ‘South African-style crowd control techniques’ (Sydney Morning Herald, 12 January 1988, p. 3). Such complaints reflected an important trend in the proliferation of paramilitary policing techniques during the 1980s—both in the re-equipping and training of general duties police and in the more common use of specialist riot police. What was initially seen as an extraordinary response capability (the TRG) had become normalised by the late 1980s into an accepted policing technique for public order control.

OVER-POLICING AND ZERO TOLERANCE The latest phase in Australian policing has been the promotion in some jurisdictions of ‘zero tolerance policing’. The idea behind zero tolerance policing is simply that a strong law-enforcement approach to minor crime (in particular public order offences) will prevent more serious crime from occurring and will ultimately lead to falling crime rates. Wilson and Kelling (1982) draw an analogy with ‘broken windows’: if one broken window in a building is not repaired, then others will be broken and the building vandalised, followed by other buildings, then the street, the neighbourhood, and so on. Similarly, according to Wilson and Kelling, if disorderly behaviour is not dealt with in a particular area, then more serious crime will be the result. In this sense, zero tolerance policing is directly aimed at increasing arrest rates for minor offences such as public drunkenness, offensive language and behaviour, loitering and other similar offences. The main example of what is argued to have been a successful use of zero tolerance policing took place in New York during the 1990s under Police Commissioner Bratton and New York Mayor Guiliani. However, there are doubts that the falling crime rate in the city during this period was solely attributable to zero tolerance policing, given that many other large US cities experienced similar declines while using different policing strategies. It has also been argued that the New York experience is largely irrelevant to the Australian context (particularly in places like the Northern Territory), given the different nature of serious crime in New York, particularly concerning drugs, firearms and homicide.29


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Zero tolerance policing is as much a piece of political rhetoric as it is a description of a well-thought-out policing strategy, and in this sense its adoption in Australia has been favoured more by politicians than by police managers. One of its main proponents has been the former Northern Territory Chief Minister, Shane Stone, who visited New York and returned to the territory as a fervid supporter. Stone described zero tolerance policing as ‘a tough approach to crime, particularly low level crime, disorderliness and ‘‘quality of life’’ issues’. During late 1998 a number of zero tolerance policing ‘trials’ took place in Darwin, Alice Springs and Tennant Creek. In August 1998 the Chief Minister announced the introduction of zero tolerance policing in the Northern Territory, simultaneously with ‘a review of police powers to ensure that Territory Police have the means to deal with aberrant and antisocial behaviour’.30 In particular, it was foreshadowed that the existing offence of loitering, under the Northern Territory Summary Offences Act 1996 would be strengthened. The zero tolerance approach completely ignores both the historical and contemporar y contexts of Aboriginal–police relations. The concentration of police resources on low-level street offences will inevitably drag more Indigenous people into the criminal justice system, given the combination of cultural difference in the use of public space, discrimination and a socioeconomic position which largely precludes access to the many private social venues of non-Aboriginal Australia. Zero tolerance policing is more likely to increase the level of antagonism between Indigenous people and the police than to lead to improved relations. There is little doubt that many Indigenous people will perceive a renewed concentration on the policing of street offences as aimed directly at their use of public space. In this sense, zero tolerance policing recalls the historical role of police in enforcing an exclusionary social order which kept Indigenous people ‘off the streets’ for much of the twentieth century.31 Zero tolerance policing signals once again a shift towards the politics of intolerance and a policing profile which has no respect for difference. The adoption of the rhetoric of zero tolerance may well be a marker in the reversal of what was seen to be a phase of reform following the Royal Commission into Aboriginal Deaths in Custody. Certainly, police concentration on arrests for minor offences was seen by the Royal Commission into Aboriginal Deaths in Custody as one of the key causes of Indigenous overrepresentation in police custody and an area in need of reform.


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Zero tolerance policing is a strategy whose focus is the opposite of what was recommended by the Royal Commission. Conclusion The evidence from the police custody surveys conducted by the Royal Commission into Aboriginal Deaths in Custody gives some indication of the extent to which police resources are utilised in the control of Aboriginal communities. As indicated in Chapter 2, nearly a third of all persons held in police custody are Aboriginal. While this figure is indicative neither of total police activity, nor of the total number of arrests, it does provide some insight into the level of policing resources which are directed at Indigenous people. Clearly it begs the question of whether the use of resources is either effective or efficient from a policing perspective, or in the interests of either the Aboriginal community or the general community. At a wider level the extensive criminalisation of Indigenous people can be placed within the context of the role of the police generally in the maintenance of colonial relations, and related to the specific changes which have occurred since the demise of protection legislation and the application of the broader criminal law. Thus a central purpose of this chapter has been to argue for both the continuities in policing from the earlier colonial periods, as well as indicating changes in the nature of police intervention, particularly around ‘street offences’. The over-policing of Indigenous people should be seen within this wider context, and not only within the narrow confines of high police numbers in Aboriginal communities, or the use of specialist tactical response groups. Over-policing occurs in the context of the historical and political relations which have brought such levels of policing into existence, and which have defined policing as a key governmental response to Aboriginal people, particularly in the face of other economic, social and health problems facing Aboriginal communities. Intense police sur veillance and the concentration on minor public order offences such as offensive language and behaviour or public drunkenness leads to the criminalisation of large numbers of Indigenous people. It also legitimates further intervention and confirmation that indeed Indigenous people are ‘criminal’ and a threat to social order. In other words, the process of criminalisation is also a process of racialisation—separating out Aboriginal people and marking them off from the norms of acceptable society.32


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Of course, there has been continuous Aboriginal resistance to the type of public order policing described here. Politically articulated opposition to this type of control was evident during the 1960s, with organisations like the Aboriginal–Australian Fellowship taking on the issue of policing within the context of the struggle for civil rights. During the 1970s and 1980s it was increasingly the Aboriginal Legal Services which worked to highlight the abuse of Aboriginal people’s civil rights. In particular, from the early 1980s the Aboriginal Legal Services and organisations such as the Committee to Defend Black Rights became involved in the political demand for a government inquiry into Aboriginal deaths in custody. Several of the deaths, such as those of John Pat and Eddie Murray, which were the early focus of the demand for an inquiry, occurred in police custody. Indeed, as the Royal Commission was to later reveal, the majority of Aboriginal deaths in custody during the 1980s occurred in police custody, and the majority of those who died had been detained for minor offences.


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5 Terror, violence and the abuse of human rights TERROR, VIOLENCE AND THE ABUSE OF HUMAN RIGHTS

The liberal view of policing conceives of police actions as contextualised by the rule of law. Police intervention and the use of force are justified both by the legitimacy of such actions in a legal sense and by the political legitimacy of a consensual social order. This model provides little assistance in understanding police functions which rely on extra-legal or illegal actions. This chapter explores the related issues of police violence, terror and the abuse of human rights. I have used a broad concept of violence which includes obvious physical assault as well as the use of terror, torture and ill-treatment. Within the category of violence I also discuss the failure to exercise a level of duty of care. The outcomes which arise when police fail to adequately perform their responsibilities, particularly those which arise from a duty of care to persons in their custody, are often disastrous. Many Aboriginal deaths in custody have arisen through failure to exercise a required duty of care. I have termed the results of this failure the ‘violence of neglect’. The following discussion of police violence is contextualised both historically through a consideration of the role of terror in policing Aboriginal communities, and within the contemporary discourses on human rights. I aim to draw out the continuities in the use of violence against Indigenous people, while at the same time placing contemporary manifestations of violence and illtreatment within the context of the abuse of internationally recognised human rights standards.

TERROR AND THE POLITICS OF COLONIALISM Terror has been a powerful weapon in the history of colonisation (Taussig 1987; Morris 1992). It has been a component of the Australian colonial process from the first days of settlement. The

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history of terror, torture and ill-treatment is intimately bound up with the various stages of warfare across the continent as Aboriginal people were dispossessed from their land. Although the punitive expeditions resulting in the indiscriminate murder of Aboriginal people had ended by the 1930s, the use of terror was still an important part of maintaining control and a key policing tactic against ‘troublesome’ communities and individuals. Terror and violence today remain an important part of the relationship between the criminal justice system and Indigenous people in Australia. There have been many Indigenous voices which have interpreted their experience of police violence within a framework of torture, terror and ill-treatment (HREOC 1991; Cunneen 1991a). Taussig (1987) has broadened our understanding of the colonial process by arguing for the importance of the role of terror in maintaining a colonial hegemony, while ‘officialdom’ attempts to create a reality which denies the extent of terror. The official denial of the use of terror, violence and torture has been particularly apparent both historically and in contemporary Australia. Given the widespread incidence of police violence, the level of official denial is sometimes staggering. The extent to which a culture of terror exists enables relations of domination to be deployed through sur veillance and violence. Marcus (1991, p. 119) has discussed the way ‘the state produces texts on Aboriginal Australians which constitute Aboriginal society as a domain of chaos and a culture of disorder’. The opposite to the construction of Indigenous society as anarchic is the use of terror tactics by state institutions in Indigenous communities. The ubiquitous nature of terror in the colonial process is only now matched by the continual denial of the history of the use of violence. The culture of denial is akin to the belief in terra nullius—the land was ‘practically’ empty, the country was peacefully ‘settled’. Historians like Reynolds have counted the death toll and argue for the need for memorials to commemorate Indigenous people who died defending their country (1995, pp. 209–11). Similarly, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families stressed the importance of truth and reconciliation as part of the remedy for the gross violation of human rights which occurred with the forced removal of Indigenous children. Counterbalancing the culture of denial is the historical memory within Indigenous culture. As noted in Chapter 3, the


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memories of massacres, forced removal of children and discriminatory policing are very much alive in Indigenous histories. There is also a direct link between historical understandings of the past and a ‘consciousness’ of the present. Certainly, Indigenous people still consciously make the connections between the history of extensive police intervention and contemporary understandings of the role of the police. In other words, Aboriginal popular memory about the nature of policing in the past is used as a way of interpreting contemporary police actions. As one Aboriginal woman interviewed in Bourke said: This is why the people feel like they do with the police. For instance, I saw the police come to my house, we used to live in an old shack down the reserve, and drag my father out, and kick and kick and kick him. I saw that. I’d be 32 years of age and that’s still on my mind . . . Look at my husband, his mother and father were told to move their old tin humpy from where they had it. And they didn’t, because my father-in-law was out of town at the time. My mother-in-law was there with eight little kids. So the police came down driving a bull dozer and knocked the house on top of them. It did not happen generations ago. It happened only in our generation (Cunneen and Robb 1987, p. 189).

Similarly, the Royal Commission into Aboriginal Deaths in Custody noted in its extensive research into criminal justice issues that the legacy of past violence and disrespect by police has remained, and continues to influence Aboriginal views of police. The Royal Commission learned during hearings in Wilcannia that Aboriginal people continued to fear police—to an extent, in one incident, which precluded a young man from attending the police station to obtain his driver’s licence (Wootten 1991a, p. 273).

POLICING AS TERROR Much of the traditional literature on policing considers police violence within a limited institutional context. Explanations for violence tend to revolve around situational factors which confront police and therefore tend to individualise the violence, or they consider the social context through analysis of the subculture and social behaviour of either (or both) the victim of violence and the police officer. The approach adopted here is far broader. I am essentially interested in the historical and political context


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which provides the broad canvas for police actions against Aboriginal and Torres Strait Islander people in Australia. While there is some attention paid to situational issues and violence in this chapter, and a consideration of police culture in Chapter 6, what I consider of foremost importance in understanding police violence against Indigenous people is the role of police as a state institution with ‘legitimate’ access to the use of force. That institution has been called upon almost continuously to enforce economic dispossession and to police a racially discriminatory social and political divide. Police have always used some level of violence in their day-today work—indeed, legitimate access to the use of force is a defining feature of the nature of the institution. Yet the structural relationship between the institution of policing and Aboriginal and Torres Strait Islander people has meant that the ‘ordinary’ resort to force has always been missing. The tactics which have been used have been extreme because of the nature of the relationship—a relationship which has always been extraordinary. Summary execution, forced relocations and forced removal of children have been carried out against whole Aboriginal communities, usually within the context of a racialised understanding that Aboriginal people were lesser, inferior beings. These were not the experiences of other Australians, although certainly some working-class families and communities would have been familiar with some of the tactics. It is within this broader context that it is useful to consider police violence within a framework of state terror. Terror and violence against communities We can begin by considering some of the continuities in the use of terror in the recent past, and by considering the extent to which terror is tied to specific policing strategies and to governance more generally. The movement of Indigenous people from Mapoon in Cape York, Queensland, in 1963 is an example of the more recent use of terror tactics against Aboriginal communities. Government, churches and the mining industry were involved in the desire to move Aboriginal people off the land and away from the Mapoon settlement—in the interests of mining development. The Mapoon people had continually resisted attempts to move them. On the evening of 15 November 1963 armed police arrived by government boat in the isolated coastal community. They


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forced the remaining Aboriginal people to the mission house where they were kept overnight under armed guard. The following day they were placed on the boat. The settlement was burnt to the ground, including the people’s houses and remaining possessions, the school, the workshop, butcher shop and the store. People’s dogs were shot. One informant recalled being on the boat and watching the settlement in flames before departing to Bamaga and ‘New Mapoon’.1 The Mapoon story is an example of the use of terror against an Aboriginal community which refused to comply with the wishes of church and government administrators. The use of terror here was undeniably tied to Indigenous resistance. Thus terror is linked, albeit at times tenuously, to governance and in this sense can be thought of as a technique of government. In the Mapoon example, terror was employed in the name of assimilation. Church and government agreed that the interests of Aboriginal people at Mapoon would be best served by their removal from their traditional lands as part of the policy of assimilation. The removal just happened to coincide with the desire to expand bauxite mining leases in the area. A more recent example of the use of terror against an Aboriginal community which is assertive of its rights is the long-running complaint concerning police tactics in the Swan Valley Nyungah community in Lockridge, Perth. The community itself has struggled over a long period to secure land tenure and develop a community based on the principles of self-determination. The first complaint concerning police raids dates back to December 1989, when the Tactical Response Group armed with shotguns and dressed in flak jackets entered the community. Nyungah people in the campsite were rounded up, some forced from their beds to lie on the ground with firearms pointed at their heads. Eight and 9-year-old girls had firearms pointed at them while they were showering.2 Over the intervening years there have been numerous complaints concerning police activities in the community. A police raid on 31 January 1996 involved twenty police vehicles, vans and four-wheel-drives arriving unannounced and speeding into the community, which at this time comprised fifteen homes and a population mostly of women and children. Between 40 and 50 police were involved in the operation, including mounted police and police with dogs.3 Some police were dressed in overalls without identification numbers. The police recovered a stolen wheelbarrow, a ‘bong’ and a small quantity of cannabis. At the


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time of the raid a doctor was making a medical visit to the community. In correspondence to the Minister of Police, she noted that the raid was highly stressful for the people of the community; it was ‘both threatening and provocative, more like the oppression expected from a military regime’. Other raids occurred in October 1995, March 1996 and January 1997. In Queensland the police riot at the Rosalie RSL Hall (Brisbane) on 27 September 1986 provided a stark example of collective police violence at an Aboriginal gathering. Aboriginal people had hired the hall for a dance following a football competition. Large numbers of police built up outside the hall during the course of the evening, despite the fact that there were no incidents reported. Police provocation, including bringing dogs into the hall, sparked a riot during which indiscriminate violence was used against Aboriginal men, women and children. One witness stated: Without warning police and police dogs began pouring in the hall . . . I saw about six police dogs with dog handlers . . . All the police had batons in their hands. They marched into the hall and moved across it swinging their batons at the black men, women and children inside the hall. Men, women and children were being kicked and batoned even when they were down on the ground.

Over 70 people were charged with drunkenness, offensive language and resisting arrest. Livingstone Alberts was outside the hall when the riot started and was attacked by several groups of police as he attempted to get away. An ABC film crew captured film of him being batoned from behind around the head, neck and shoulders. He was later kicked while on the ground. One police officer was eventually charged with assault and pleaded guilty. However, the judge dismissed the matter with no conviction recorded against the officer.4 Terror and violence against individuals A number of inquiries, surveys and studies in the 1990s considered the issue of police violence against Indigenous people. While these studies utilise various methodologies and lack a common definition of what constitutes police violence, taken together they indicate the extensive nature of police use of violence and the high levels of intervention by police.5 For example, the Australian Bureau of Statistics (ABS 1995) national Aboriginal and Torres


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Strait Islander survey provides disturbing data about Aboriginal people being ‘hassled’ and assaulted by police. In the ABS survey approximately 10 per cent of all persons aged thirteen years and over reported being hassled by police during the twelve months prior to being interviewed. Some 14 per cent of males and 5 per cent of females said they were hassled. The ABS estimated 22 per cent of males aged between fifteen and ninteen years reported being hassled. Approximately 3 per cent of persons aged thirteen years and over said they were physically assaulted by the police in the twelve months before the interview (ABS 1995, p. 59). The most extensive consideration of violence against Indigenous people occurred with the National Inquiry into Racist Violence. The Inquiry held public hearings throughout Australia and received written submissions from many individuals and organisations, and commissioned a number of regional consultancies to assess the incidence of racist violence through community consultations. A number of specific research projects were also undertaken. The Inquiry found that ‘Aboriginal–police relations had reached a critical point due to widespread involvement of police in acts of racist violence, intimidation and harassment’ (HREOC 1991, p. 387). An overwhelming feature of the evidence presented to the National Inquiry by Indigenous people was their complaints concerning police misconduct. The six regional consultancy reports from the Pilbara (Western Australia), Geraldton (Western Australia), Cairns (Queensland), Adelaide (South Australia), Bourke (New South Wales) and the Northern Territory all mentioned Aboriginal–police relations as an important issue. In addition, some 25 of the 50 written submissions to the Inquiry relating to Indigenous people were concerned with allegations of police violence. As well, evidence was received at all the public hearings in New South Wales, Queensland, South Australia, Victoria and Western Australia in relation to alleged assaults by police officers. There were many allegations of physical violence by police officers, in the oral evidence, in the written submissions and in the research consultancy reports which were presented to the Inquiry. In some cases there were witnesses, and in a few cases formal complaints were made. In a small number of complaints there was successful civil litigation. It was clear from all the evidence presented to the Inquiry that the treatment of Indigenous people by police was an issue of national significance. The Royal Commission into Aboriginal Deaths in Custody


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Commissioner also noted that complaints of bashings by police were made to the Commission. Complaints in New South Wales included ‘punching, shoving, beating with batons, and the indirect violence of deliberately rough rides in police vans’ (Wootten 1991a, p. 278). The Commission felt that the widespread and discriminatory nature of the complaints, the depth of feeling and the history of violence, ‘can leave no doubt that at various times and in many places police ‘‘bashing’’ of Aboriginals has been a serious problem and has left a major barrier to Aboriginal trust of police’ (Wootten 1991a, p. 279). The Commission believed that it was impossible to know the extent of police violence—but the issue was not systematically investigated, a perplexing omission given that the Royal Commission was investigating Aboriginal deaths in custody. Indigenous young people A study on Aboriginal juveniles and their relations with police, prepared for the National Inquiry into Racist Violence, found that over 80 per cent of Aboriginal juveniles in detention centres in New South Wales, Queensland and Western Australia alleged that they had been assaulted by police on at least one occasion (Cunneen 1991a). Many of the juveniles who reported being assaulted alleged that the assaults occurred in the police station and were associated with the gaining of information. Some 81 per cent said they had been subjected to racist abuse, while many also alleged that they had been threatened with hanging or had suggestions made about committing suicide.6 Aboriginal girls who were interviewed reported similar assaults to the males, as well as the incidence of sexist verbal abuse. Overall, the study found that there were widespread complaints in relation to violence across the three states, that the allegations were geographically widespread within each state and that there was an internal consistency in the types of complaints across the nation. In addition there was a strong tendency on the part of those interviewed to see the violence as something normal and to be expected; in some cases the significance of the violence was down-played by the victims. Violence by police officers was found to take a number of forms including verbal abuse, physical assault, provocation and harassment. The interviews with Indigenous young people revealed two particular situational factors underpinning police violence. The


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first related to the policing of public space and the contest which occurs over the use of such space. The second related to violence which occurs in police stations and lock-ups, primarily to do with gaining admissions from individuals who had been arrested, but also often including a routine form of summary ‘punishment’. Not all forms of police violence in public directly related to the establishment or confirmation of police authority, as unprovoked violence and harassment by police officers occurred without any overt challenge to their authority. Similarly, violence in the police station or lock-up sometimes occurred without any directly instrumental link to gaining an admission from the alleged offender, although, in most cases the violence did have an instrumental purpose. Less than 10 per cent of the Indigenous young people interviewed recollected making any form of complaint about the incidents of violence. In the majority of cases there was simply seen to be ‘no point’. The nature of the few complaints which were made was ambiguous and did not necessarily involve the lodging of a formal police complaint. The data from sur veys and inquiries, in particular the National Inquiry into Racist Violence, confirms the experiences of Aboriginal people recounted in various recent case studies and interviews with Indigenous organisations (Cunneen and McDonald 1997a). What has become known as the Pinkenba Incident provides another well-documented case study on the use of terror and violence against Indigenous people. Three Aboriginal children, aged 12, 13 and 14, were detained by six police officers in a shopping mall in Fortitude Valley, Brisbane, some time after midnight on 10 May 1994. There was no evidence they had committed any offence at the time they were detained. The boys were never charged with any criminal matter and were never taken to a police station (Eades 1995a, p. 10). Instead they were driven about fourteen kilometres away to an industrial wasteland and swamp in Pinkenba in three police cars. According to a police spokesperson, the young people were ‘taken down to Pinkenba to reflect on their misdemeanours’ (ABC Four Corners, 18 March 1996). The three boys claimed that they were terrorised by six police officers on the banks of a creek, that they were told to take their clothes and shoes off and that they were going to be thrown in the creek. They also claimed that police threatened to cut off their fingers. Finally the six police drove off and left the children to


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find their way back to Fortitude Valley at around 4 o’clock in the morning. The police officers were charged with unlawfully depriving the three Aboriginal young people of their liberty. When the case came to court there were complaints about the way the hearing was conducted. The children were visibly upset in the witness box, with the youngest child crying. A taped recording of the proceedings reveals the extent to which the children were badgered and harangued by the counsel representing the six police officers. On at least three occasions the magistrate hearing the case against the police referred to the Aboriginal witnesses as the ‘defendants’, although it was (ostensibly) the police officers who were charged with committing a crime. According to Eades, the ‘proceedings in the magistrate’s court amounted to an obscene travesty of justice’ (Eades 1995a, p. 11). The magistrate found that the police officers had no case to answer because there was no evidence that the children were held against their will—although there was no dispute that they had been placed in the police cars, driven to Pinkenba and ‘dumped’ there. The Queensland Supreme Court upheld the magistrate’s decision in March 1996. Part of the reasoning for the magistrate’s decision rested on the experience and character of the three Aboriginal boys. The result was a finding about their character and behaviour which rationalised and excused the criminal behaviour of the six police officers. The magistrate noted the following: The three complainant children have more knowledge as to their rights in relation to the police than the ordinary child in the street, and in many respects they have more knowledge than many of our adult community members. They have admitted knowing the contents of a card issued by the Aboriginal Legal Service. As well as that, they know the Court system well, having kept the Court and legal representatives occupied on many occasions. In fact C. has three pages of previous history and he was the youngest of the trio. All three of them by their history and their own testimony have no regard for members of the community, their property or even the justice system.7

The Pinkenba incident crystallises issues in relation to police terror and violence against Indigenous people. It reflects the contemporary use of terror as a police tactic of control over what are perceived to be dissident and troublesome groups of Indigenous people—in this case young people in public places. However,


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the issue of importance here is not just that such an incident can occur, it is also that the justice mechanisms that are supposed to protect people from the arbitrary use of force and imprisonment, that are supposed to ensure accountability in instances of abuse of power, in the end reinforce the ‘criminality’ of Aboriginal people and leave the abuses unchecked (Cunneen and McDonald 1997a, pp. 60–2). Essentially, the courts found that police vigilantism against Indigenous young people could be condoned. Terror could be legitimately employed as a tactic or technique of governance without fear of adverse legal consequence. Condren and Henry Violence and intimidation against Indigenous people leads to significant miscarriages of justice. The case of Kelvin Condren provides an extreme illustration of this point. Condren was sentenced to life imprisonment in 1984 for the murder of Patricia Carlton. Both Condren and Carlton were Aboriginal people living in Mt Isa. The case caused considerable controversy and the conviction was finally set aside by the Queensland Court of Criminal Appeal in June 1990. Condren had, by this time, spent six years in prison. Condren had always claimed that he was assaulted and verballed by police over the murder he had supposedly confessed to committing. Specifically, Condren claimed that he had been subjected to assault and intimidation prior to making a police record of interview, that the record of interview was largely fabricated by police and that the oral admissions which police claimed he had made prior to the record of interview were also fabricated. Three Aboriginal witnesses also claimed that the statements they had made to police in the matter were false and had been obtained through intimidation, duress and assault (Criminal Justice Commission 1992). In the first application to the Queensland Court of Criminal Appeal in 1987 evidence pointing to Condren’s innocence had been rejected. The mode of reasoning in that rejection is illuminating. A linguistic expert with particular knowledge of Aboriginal English and the legal process, Dr Eades, had presented evidence to the court that the speech patterns in the police record of interview were inconsistent with the type of speech patterns used by Aboriginal people in Queensland. Eades’ evidence was rejected by the court on a number of grounds, one of which was that


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Condren was only ‘part-Aboriginal’ and therefore not within the group described by Dr Eades (see Caruana 1989). During the first appeal the court accepted the uncorroborated confession to police despite mounting evidence which cast doubt on its validity. The matter went back to the Queensland Court of Criminal Appeal for a second time in 1989 after intervention by the High Court of Australia and a commitment by the new Queensland Labor Attorney-General to review the case. Condren was released from gaol in 1990.8 Very occasionally, incidents of police violence find their way through the court system and reach a successful conclusion after civil litigation. The assault on Trevor Henry by police in Normanton, Queensland, provides a rare case where civil damages were awarded for injuries sustained after a police assault. Henry was at a dance in Normanton when he was arrested for obscene language. He was taken to the police watch-house. In setting out the facts of the case, Judge Healy found that Henry was pushed into the watch-house and punched to the ground by police officers Thompson and Doolan. They then kicked him around the head and shoulders. During the assault Henry tried to get through the watch-house door but was pushed against the wire mesh by a third officer, Smith. Thompson took hold of the mesh and jumped up and down on Henry’s head and shoulders. After Thompson had finished jumping on him, Doolan stood over him and urinated on his stomach. Judge Healy ordered that the three officers pay Henry damages of $25 000.9 Torture An integral part of terror and violence is the use of torture.10 What do we mean when we talk of ‘torture’? The Australian Commonwealth legislation specifying the offences related to torture can be found in the Crimes (Torture) Act 1988. The legislation generally follows the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Section 3(1) of the Act specifies that an act of torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: (a) for such purposes as: (i) obtaining from the person or from a third person information or a confession; (ii) punishing a person for an act which that person or a third


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person has committed or is suspected of having committed; or (iii) intimidating or coercing the person or a third person (b) for any reason based on discrimination of any kind.

A significant limitation of the legislation is that it only applies to acts committed by Australians outside Australia (section 6(1)(a)). Amnesty International (1984, p. 13) has noted that the main definitional elements contained in the term ‘torture’ are the severity of mental or physical pain or suffering caused to the victim, the deliberateness of the act, and the involvement of state officials in the act. Amnesty also noted that there has not been a clear definition of precisely what is meant by ‘cruel, inhuman or degrading punishment’. Torture is a form of ill-treatment which is aggravated and deliberate. There is thus a ‘grey area’ between actions which might constitute ‘torture’ and actions which constitute ‘ill-treatment’. Amnesty International’s discussion on the nature of torture is relevant to the situation of Aboriginal and Torres Strait Islander people. It notes that torture is essentially a state activity which may play an integral role in the political system itself. It is not only used ‘to generate confessions and information from citizens believed to oppose the government; it is also used to deter others from expressing opposition’ (Amnesty International 1975, p. 22). Benfeldt-Zachrisson has also noted that while the purpose of torture may partially appear to be information, ‘the specific purpose served by such brutality seems to be primarily the destruction of the individual in his/her most basic humanity, while the general objective seems to be the attempt to prevent dissidence—a way of exercising and maintaining power by terror’ (Benfeldt-Zachrisson 1985, p. 340). According to Amnesty International, the subjects of torture are those believed to threaten the established order and who are ‘placed in a category that puts them beyond the pale . . . The use of torture is an element in the process of exorcising evil from a society. A community under stress needs a scapegoat to confess responsibility for the evils besetting the society’ (1975, p. 32). The constant linking of Indigenous people with criminality and disorder isolates them from the mainstream of the nation, and positions them as an evil social element. It places them in a structural position which provides legitimation for the use of extreme measures of force.


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The literature suggests that suicide is ‘not an uncommon result of torture, either in prison to avoid further pain or after release due to the oppressive suffering that persists’ (Reid and Strong 1987, p. 54). The effects of torture are seen in both family life and social life, where psychological disorders may manifest themselves through a range of abnormal behaviours. Reid and Strong note that identifying torture and ill-treatment is emotive and almost any discussion is likely to provoke charges of bias and prejudice. They observe that victims are likely to have a fear of making any disclosures because of potential repercussions and that torture, by its nature, is usually secretive and therefore difficult to document. They also indicate that for female victims of state violence a common experience is the use of rape, and note that the effects on children, who may either be subjected to ill-treatment or witness torture, are particularly profound. Is there any evidence that torture occurs in Australia? The possibility of Australian police officers being engaged in the use of torture is not a novel proposition. An inquiry by the NSW Ombudsman into complaints against a police SWOS officer revealed that the tactics used by the officer in a mock interrogation of a ‘terrorist suspect’ (who was a female police officer) breached the United Nations convention on treatment of prisoners of war, the Commonwealth legislation on torture and constituted assault under the criminal law (Landa 1989, pp. 17–18). There have been many Indigenous voices that have reported police violence within a framework of torture and ill-treatment. The research into Indigenous young people and allegations of police violence is replete with such stories (Cunneen 1991a). For instance, a 16-year-old youth taken to a Perth police station for questioning initially refused to answer questions. He stated that the police said to him, ‘If you don’t talk we’re going to do something really bad to you’. He alleged that he was assaulted and later stripped to his underpants—in mid-winter—and left in a room with the air-conditioning set to the lowest temperature. He eventually made a statement in relation to offences for break and enter, car theft, assault and malicious damage. He alleged he knew nothing of the offences, but commented ‘they were torturing me’ (Cunneen 1991a, p. 23). The violence was often premeditated. For instance, a 15-year-old Aboriginal youth in Brisbane alleged he was brought to a police station, taken to a room and handcuffed to a chair with rollers on the base. He was then pushed around the room and punched by two police officers.


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Another Aboriginal youth said that he was rolled in a blanket in the cells at an outer Brisbane police station and beaten by police officers. Similarly, a 16-year-old youth claimed that, while in the police cells at a south-western New South Wales station, he had a blanket put over his head while he was kicked and punched. In Perth a number of youths claimed serious assaults during questioning. One youth stated that he was picked up for questioning and taken to a Perth police station. He alleged that a metal paper bin was placed over his head and that it was hit while he was being questioned. He was then made to sit in a corner with the bin on his head while police who walked past were in a position to hit it. Finally he was placed in a small room, with the bin still over his head. He was later released without charges being laid (Cunneen 1991a, pp. 22, 31). Other evidence to the National Inquiry into Racist Violence indicated the interconnections between torture, terror and cruel, inhuman and degrading treatment. For example, a non-Aboriginal woman who was arrested with Aboriginal people in Western Australia gave evidence to the Inquiry, stating that Aboriginal detainees were ‘humiliated . . . laughed at, jeered at, enticed to say something wrong so that the punishment would be even greater, threatened with the padded cell, abused with the most insidious remarks . . . I have never [before] seen this kind of human abuse, this mental torture never’ (HREOC 1991, pp. 105– 6). Violent, cruel and degrading ill-treatment of Aboriginal people while they were in police custody was recounted in many complaints to the Inquiry. Widespread complaints involved police violence during interrogation. There were complaints relating to the use of violence as a technique of control, such as the use of fire hoses to ‘quieten down’ detainees, a practice which was admitted by police in Queensland. There was also the aspect of degrading treatment while in custody. For instance, it was alleged that in the Pilbara region of Western Australia, Aboriginal men had been forced, through lack of water, to drink from toilet bowls while they were held in police cells (HREOC 1991, pp. 104–5). Actions which might constitute torture and ill-treatment can be defined and considered in several ways. One is through the limited legal interpretation of whether the specified actions fulfil the requirements necessary to constitute the elements of a particular offence, that is, an interpretation of events centred on the definition of particular actions in terms of the legal requirements which define torture. Broader, and perhaps more useful, is a


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sociopolitical definition in relation to the use of state violence. State torture and ill-treatment under this definition recognises the victim’s perceptions of the nature of their treatment and the trauma which it caused. In addition, it recognises the essentially political relationship between the selective policing processes of the state, the targeting of particular groups of people and their likelihood of receiving violent treatment.

TERROR AND TRAUMA Mention has already been made of the use of paramilitary specialist police groups like the TRG in Aboriginal communities. It is important to consider the manner in which terror and violence are utilised as a policing strategy by such groups for it is clear that terror is employed as a conscious policing tactic when paramilitary police squads are utilised. Those squads are also disproportionately used against Aboriginal people. The use of terror as a policing strategy became evident in the inquiries which followed the police killing of David Gundy in Sydney in 1989. During the coronial inquiry into his death, a senior superintendent from the Western Australian Tactical Response Group gave evidence on the tactics used by such groups. He stated that ‘normally when a raid takes place in these circumstances there was a huge amount of terror or fear created’ (Wootten 1991b, p. 36). Certainly, evidence to the National Inquiry into Racist Violence was testament to the terror involved in the use of the Western Australian Tactical Response Group in its raids on Aboriginal groups—particularly the Swan Valley Nyungah community. During the David Gundy hearing, members of SWOS in Sydney gave evidence of how they use terror during forced raids as a way gaining ‘dominance’ over persons inside a house. The assumption was that the suddenness and surprise of forced entry (which involves sledgehammering open a door), and the appearance of paramilitary police armed with shotguns, would terrify people to the extent they would ‘freeze’. The Royal Commission’s subsequent report reveals the spurious assumptions about human behaviour involved in such explanations. The use of these tactics also raises the question of the psychological and physical harm caused to people as a result. There is also, of course, the broader political effect on the Indigenous communities which are the subject of such strategies, which can be interpreted as the


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suppression of dissidence and the maintenance of power through the use of terror. In the broader scheme of colonial relations, terror has always had a place in maintaining dominance over the colonised, while the actual police benefit in traditional terms from such raids is often quite small. In the Gundy raid an innocent man died and there was no new information gathered on the person the police were seeking to apprehend. Despite the involvement of 135 police, the Redfern raid, which received legitimation as primarily a ‘drug’ operation, netted only one charge for the possession of an implement for the use of drugs—the police confiscated two ‘bongs’ (Cunneen 1990a, p. 21). A further factor with political ramifications is that raids such as the Redfern raid and the one which resulted in David Gundy’s death were illegal. The Royal Commission report into the death of David Gundy found that he was killed during an ‘unlawful police raid on his home . . . Police had no legal right to be in his home at all, much less to point a loaded and cocked shotgun at him’ (Wootten 1991b, p. 1). Police instructions, SWOS instructions and legal requirements were ignored in the conduct of the raid. The search warrants were illegally obtained and illegally executed— David Gundy was killed in the conduct of an illegal police raid. The Redfern raid was the subject of highly critical comments in investigations by the Human Rights and Equal Opportunity Commission (Cunneen 1990a) and the NSW Office of the Ombudsman (1991). In terms of the legality or otherwise of the raid, Finlay J in the NSW Supreme Court found that four of the seven search warrants used were invalid; another warrant was found valid ‘but not without some reservations’; the two remaining warrants were valid, but police raided the wrong houses.11 Along with the political effects, the medical and psychological effects of such raids on Aboriginal people have been profound. The NSW Office of the Ombudsman received substantial medical and psychological evidence on the effects of the Redfern police raid, which were still obvious some twelve months after the event. These effects were particularly pronounced on young children who were occupants of the houses which were raided, and were commented upon by Aboriginal health workers, pre-school teachers and child psychiatrists (NSW Office of the Ombudsman 1991, pp. 50–1). One house raided by the TRG and other police in Redfern in February 1990 contained a husband and wife and five children aged 16, 11, 6 and 2 years and a 5-month-old baby. The suspect


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for whom the police were searching was not in the house and in fact had already reported to police in Wagga. Twelve months after the raid the mother of the children wrote to the Ombudsman, saying that the family relived the raid every time they heard a police siren at night. ‘Charlie, my youngest son lays in the bed screaming and wetting himself in fear. Kimberley stands in the cot screaming with her arms out for me to pick her up. The children are in fear of the raid re-occurring’ (NSW Office of the Ombudsman 1991, p. 59). A child and family psychiatrist had been treating the family for twelve months. In a report to the Ombudsman, she stated that the 3-year-old had become ‘aggressive with peers, demanding of the mother, [suffering from] night bedwetting and hyper-reactive of stimuli suggestive of police’. Two older boys ‘speak frequently together about the raid and question the likelihood of a recurrence’. One was ‘formerly a problem-free child whose school reports have always been good . . . in the 1990 end-of-year report [he is described] for the first time in negative terms’. In relation to the mother, the psychiatrist stated that ‘I have no doubt that the stresses and problems I have described above have derived from the raid of February 8, 1990, experienced as considerable terror’ (NSW Office of the Ombudsman 1991, pp. 59–60). In another Redfern house raided by the TRG was a young woman, her 6-year-old son and 6-month-old baby. The person for whom the police were searching did not live at the address. The occupant told the Ombudsman that the raid was stressful and dehumanising. She told of being traumatised by more recent police presence in Redfern. A health worker provided a report to the Ombudsman’s Office which detailed the woman’s symptoms as ‘constant apprehension, a foreboding that the raid would be repeated, general nervousness and difficulty coping with the children and a sense of pent-up anger with herself and members of her family’. She was diagnosed as ‘suffering from an acute reaction to stress—Post Traumatic Stress Syndrome’. She was recommended for treatment to the Centre for Victims of Torture and Trauma run by the NSW Health Department (NSW Office of the Ombudsman 1991, pp. 50–1). The Centre for Victims of Torture and Trauma was established to deal with people coming to Australia who had been the victims of torture and terror in foreign countries. It is highly significant that the first Australianborn person recommended to use the centre should be an


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Aboriginal person who had been the victim of police paramilitary tactics. The violence of neglect and indifference While violence is often associated with the actions of individuals on others, it can also be seen in the inaction of authorities who have specific responsibilities and duties. At its most extreme inaction can result in death. Perhaps the greatest contemporary testament to the deadly effects of institutional neglect and indifference can be found in the reports of the Royal Commission into Aboriginal Deaths in Custody. The Royal Commission did not find that the deaths it investigated were the result of deliberate violence or brutality by police or prison officers,12 but it did find that there was little understanding of the duty of care owed by custodial authorities, that there were many system defects in relation to exercising care, and that there were many failures to exercise proper care. In some cases these failures in the duty of care were causally related to the deaths in custody. In other words, Indigenous people died as the result of neglect and indifference by the custodial authorities who had direct responsibility for their well-being. Two-thirds of the 99 deaths in custody which were investigated occurred in police custody. In Queensland, the Royal Commission found that five deaths of the 27 investigated (O’Rourke, Pilot, Fay Yarrie, Binks and Wouters) ‘were preventable in that they would not have occurred if the custodial authorities had adequately attended to their responsibilities’ (Wyvill 1991, p. 27). At least two other deaths (Barbara Yarrie and Tiers) may have been preventable. In particular, ‘a lack of understanding of the duty of care owed to a person in custody; a failure on the part of one or more individuals to perform their custodial duties; [and] entrenched habits of noncompliance by police with General Instructions’ contributed to the deaths (Wyvill 1991, p. 27). Similarly, in relation to New South Wales, Victoria and Tasmania, Commissioner Wootten noted that ‘every one of the [18] deaths was potentially avoidable and in a more enlightened and efficient system . . . might not have occurred. Many of those who died should not or need not have been in custody at all’ (Wootten 1991a, p. 7). He found that ‘negligence, lack of care, and/or breach of instructions on the part of custodial authorities was found to have played an important role in the circumstances


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leading to 13 of the 18 deaths investigated’ (1991a, p. 63). Wootten recommended consideration of criminal and/or disciplinary proceedings in seven of those eighteen deaths—Leslie, Quayle, Moffat, Gundy, Kearney, Atkinson and Boney, all involving deaths in police custody. In the Leslie case three police officers conspired to conceal what had happened to Leslie while in the police station by giving false evidence and a further two officers attempted to mislead the Royal Commission. Wootten was unable to determine where Leslie had received the injuries leading to his death. The Quayle case involved breaches of duty by a nursing sister and a doctor as well as two police officers. The police unlawfully locked Quayle in a police van and in police cells and after placing him in custody they failed to take reasonable care of him. In the Moffat case, police did not follow procedures in relation to intoxicated people. In the Kearney case police failed to carry out their obligations under the New South Wales Intoxicated Persons Act 1979. One officer gave false evidence to the Commission. In the Gundy case it was found that Gundy was killed during an unlawful police raid on his home. In the Atkinson case, two police were negligent in not informing senior police of earlier self-mutilation and threats of suicide by the prisoner. The station sergeant failed to follow police procedures by visiting the prisoner at least every hour. In the Boney case, police officers failed to follow police procedures in relation to cell visits and failed to follow legal process in taking the arrested person before a Justice of the Peace. In the Leslie and Moffat cases there were also recommendations that the Ambulance Authority consider whether disciplinary action should be taken against ambulance officers for failure of duty. Other Commissioners with the Royal Commission into Aboriginal Deaths in Custody did not make recommendations concerning potential criminal or disciplinary proceedings. However, their reports are equally damning of the indifference to the duty of care demonstrated by police officers. For example, there were five Aboriginal deaths in custody in the Kalgoorlie police lock-up during the 1980s. In the last four of these deaths (Barnes, Polak, Wells and McGrath), police ignored procedures relating to cell checks which had been specifically introduced after the first Aboriginal death in custody in the lock-up (O’Dea 1991, pp. 456–7).


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Deaths in custody since the Royal Commission Deaths in custody have continued since the finalisation of the Royal Commission into Aboriginal Deaths in Custody, many of them occurring in situations which the Royal Commission has identified as requiring change. For instance, in October 1990 Craig Sandy was arrested for drunkenness and placed in Mornington Island watchhouse, where he later died. The coronial inquiry found that Sandy was unlawfully placed in police custody at the time of his death. Queensland Police Instructions were not properly complied with and the watch-house itself did not provide a safe custodial environment.13 A more recent death in 1996 in the police lock-up on Bathurst Island, Northern Territory, reflected a similar disregard for Royal Commission recommendations. There was no soberingup shelter and the man who died was placed in the lock-up without supervision. The death of Phyliss May in Macquarie Fields police station in Sydney’s south-west in 1992 similarly reflected a failure to provide supervision in an environment where suicide was a possibility. The Coroner found that the custodial care was substandard. The most extensive examination of deaths in custody since the Royal Commission into Aboriginal Deaths in Custody has been prepared by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner (1996). It examined 96 Indigenous deaths in custody during the period 1989–96 and used the findings of coronial inquests as a means of auditing the implementation of Royal Commission recommendations. The report found that the average number of Indigenous deaths in custody during the Royal Commission period was 10.4 per annum, while in the post-Royal Commission period it was 11.4. The location of deaths had changed from being primarily in police custody (two-thirds of the total) during the Royal Commission period to occurring primarily in prison during the later period (two-thirds of the total). The report found that in all of the sixteen deaths in police cells or police vans there were numerous breaches of Royal Commission recommendations, including lack of proper assessment procedures; lack of protocols for dealing with intoxicated persons; insufficient training to distinguish intoxication from injuries; irregular cell observations and lack of Aboriginal visitor programs (Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner 1996, pp. 53–96). In at least two of these deaths it has been suggested that police were open to being


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sued for false imprisonment. In one case a woman was removed from her home, placed in a police truck and charged with public drunkenness. In the other case a woman suffering from a heart attack was assumed to be drunk. She was arrested and placed in the police lock-up where she died (Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner 1996, p. 291). A 1997 report by Amnesty International sums up ongoing concerns with Indigenous deaths in custody, noting that Indigenous people ‘are still dying in prison and police custody at high levels, sometimes in circumstances which Amnesty International believes may have amounted to cruel, inhuman or degrading treatment’ (Amnesty International 1997a, p. 1).

THE ABUSE OF HUMAN RIGHTS There is widespread and consistent evidence of police violence and ill-treatment of Indigenous people throughout Australia, a level of violence which is hardly surprising when placed in the historical perspective of the colonial process. The role of terror in the colonial process also provides a conceptual framework for considering contemporary manifestations of violence. Terror continues to be deployed as a technique of governance. The consequences of terror for Indigenous people can be profound, ranging from personal humiliation to psychological trauma, from wrongful imprisonment for years to physical injury and death. Terror also has an apparently benign face—the violence of indifference and neglect. For many Indigenous people, indifference to their welfare by those required to exercise a duty of care has proved to be equally as disastrous (even fatal) as a police paramilitary raid. The two general situational factors surrounding police violence against Indigenous people are the policing of public places and the police interrogation process. One can argue that there is a certain instrumentality in the use of violence by police in these situations when it is used to achieve certain identifiable ends. Often Indigenous people state that they view police violence as ‘normal’. This should alert us to the fact that violence may be a more or less accepted work practice, neither marginal nor exceptional. In this sense the use of violence can be related to the central tasks of policing: the maintenance of order and gaining convictions. Yet the experience of Indigenous people with the police is qualitatively different from that of non-Indigenous


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Australians, deriving directly from two sets of factors: a colonial process which involved police participation in genocide, and the racialised construction of Indigenous people as inferior. The processes of criminalisation entail subjecting all individuals to varying degrees of violence—in this sense the use of some degree of violence is a technique of policing. However, the historically specific experience of Indigenous people provides compelling reasons for considering the use of violence against them as institutionalised racist violence directly connected to the colonial process. The racialised constructions of Indigenous people continue to provide the context in which police decision-making occurs. The way in which routine police decision-making discriminates against Indigenous people is discussed in Chapter 6. Violence and ill-treatment of Indigenous people by police inevitably raises the question of the abuse of human rights.14 Human rights abuses in Australia have been in international focus ever since Amnesty International began to raise questions concerning Aboriginal deaths in custody in the 1980s. Since 1988 annual Amnesty International Reports have reported on Australia in relation to potential human rights abuses. A specific report issued in 1993 focused on the relationship between Aboriginal people and the criminal justice system. It found, among other things, that ‘conditions in certain facilities may amount to cruel, inhuman or degrading treatment’ (Amnesty International 1993, p. 1). In January 1997, Amnesty’s Focus newsletter accused Australia of a ‘wavering commitment to human rights’ and noted that: Aboriginal Australians have been ill-treated and abused by state officials, and suffer systemic discrimination. Incidents of ill-treatment by police have gone unpunished. The government has also taken decisions that appear to undermine its stated commitment to human rights (Amnesty International 1997b, p. 3).

Australia is a party to the major international human rights instruments which seek to protect individuals from torture, from cruel and inhuman treatment, from racial discrimination and from unnecessary and arbitrary detention.15 Recommendation 60 of the Royal Commission into Aboriginal Deaths in Custody called for the elimination of violent treatment and abuse by police. Yet abuse by police is still seen to be a major problem throughout the country and is confirmed by recent research in the area (Cunneen and McDonald 1997a, pp. 90–3). The widespread complaints of ill-treatment continue to raise issues in relation to


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Australia’s compliance with the International Covenant on Civil and Political Rights (ICCPR), in particular article 7 (prohibiting torture, or cruel, inhuman or degrading treatment) and article 10 (covering detention conditions and treatment with humanity and respect). Similarly, complaints of over-policing, harassment and heavy-handed policing of Aboriginal people raise issues of Australia’s compliance with the prohibition on racial discrimination and assurances on equality before the law—issues which are covered by article 2(1) and article 26 of the ICCPR, as well as the Convention for the Elimination of Racial Discrimination (CERD).


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6 Police culture and the use of discretion POLICE CULTURE AND THE USE OF DISCRETION

This chapter examines the connected issues of police discretion and police culture. It seeks to establish whether routine decisionmaking by police is invariably to the detriment of Indigenous people, and to examine the factors which might explain adverse decision-making. It also considers how police utilise discretion in relation to Indigenous people and examines decision-making in regard to young people as a specific example. The problems of police discretion and Indigenous young people are particularly apparent in relationship to new schemes such as ‘family group conferencing’ which seek to provide alternatives to more orthodox criminal justice interventions. Clearly, police decision-making does not occur within a vacuum. Decisions are made within a broader context of training, knowledge and values. What is referred to as ‘police culture’ provides the framework within which knowledge is developed and decisions are made. To understand the relationship between Indigenous people and police it is important to consider what is specific about police culture that might directly impinge on how police deal with Indigenous people. The intersection between broader social attitudes towards Indigenous people, police culture and the use of discretion is examined through the specific issue of police custody. I have referred to this as ‘the normalisation of Indigenous imprisonment’. Finally, the adverse use of police discretion is discussed as a human rights issue because it results in the unnecessary arrest and detention of Indigenous people—contrary to a number of international standards to which Australia is a party. What is police discretion? ‘Discretion’ simply refers to the judgement or choice which police make in selecting a particular course of action. Discretion includes substantive choices over whether to invoke the criminal law against particular behaviour,

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as well as choices over procedure, methods, timing, degrees of emphasis, the use of force, and so on (Milte and Weber 1977, p. 246). The inquiry into allegations of corruption among Queensland police noted ‘each police officer has extensive authority over all other citizens, however powerful, coupled with wide discretions concerning its exercise’ (Fitzgerald 1989, p. 200). Police are constantly called upon to make decisions about how they will exercise their authority. Not only is policing an activity with a high level of discretion, but discretionary decisions must be constantly made, often with little supervision. Police must continually decide which laws to enforce, particularly where the alleged offending behaviour may be trivial, and they must decide how to enforce the law. Is a warning sufficient? Should an individual be immediately arrested or simply summonsed to appear in court? Or held in custody? It is widely recognised that police exercise their discretion in areas that are of ‘low visibility’ in terms of review and accountability (Goldstein 1960). Police decisions are rarely open to scrutiny yet they have a strong influence on the entire criminal justice system. Discretion is inevitable in policing—full enforcement of the law is an impossible task.1 However, for discretionary decisions to be seen as legitimate they have to be seen as fair by the community being policed. Thus, while the utilisation of discretion is an individualising process separating out persons for differential treatment, a sense of social legitimacy remains if the process is seen to be both transparent and impartial by the broader community. Much of the rhetoric surrounding the independent decisionmaking power of a police officer derives from arguments about the common law powers of the constable to exercise discretion. The original powers of the constable are said to derive from the community, embodied in the notion that ‘the police are the public and the public are the police’. Thus, traditional explanations of police discretion rest on idealised notions of community consensus around the role of policing. Police are thought of as drawing their legitimacy from such consensus, built on the images of community policing and a homogenous community. In this idealised vision the fairness of police decision-making is said to derive from the connection of the police with community. In other words, police decisions are thought to reflect community consensus. However, Hogg and Hawker (1983) have argued that this notion of ‘original powers’ is relatively recent in case law, and


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that it does not account for the basic issue that police are required to act within the policies and rules which have been developed by government and/or the police commissioner. In other words, policing does not occur within an administrative and legal vacuum. We also know that police roles are highly differentiated and that organisational and legal structures orient policing towards different social groups in different ways (Findlay 1993). In relation to Indigenous people, conflict in public places, institutionalised unequal treatment in the use of discretion and ongoing complaints about the use of excessive force are key issues which structure the relationship between the two groups. The notion that police legitimacy is drawn from the community has never had validity in relation to Indigenous people in Australia. The police have always been a central institution in the governance of Indigenous communities in the interest of a colonising society.

POLICE DISCRETION AND INDIGENOUS YOUNG PEOPLE A focus on police decision-making with young people helps to understand how police discretion can work to the disadvantage of Indigenous people. In general, the level of police discretion is far greater when dealing with youth than it is when dealing with adults. This situation arises because the system of juvenile justice allows for greater potential diversion from the formal court system than does the adult criminal justice system.2 There is no doubt that police determine entrance into the juvenile justice system: they are the ‘gate-keepers’ who decide who will enter the system and how they will enter. While this is also true of the adult criminal justice system, the potential avenues for avoiding formal criminalisation are greater when young people are involved. There are three further reasons for focusing on police decision-making specifically in relation to juveniles. First, it has been shown that police decisions about whether to issue a warning or a caution, to lay a criminal charge, or to proceed by way of arrest or by summons influence later judicial decisions made about the young person, just as decisions made about adult offenders are invariably influenced by previous criminal records (which themselves may reflect proceedings as a juvenile). Decisions made by police may have a compounding effect where early punitive decisions negatively influence later decisions in the juvenile justice process, including court outcomes. A chain of


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continuing escalation in the level of intervention may be established (Gale et al. 1990; Luke and Cunneen 1995). Research in South Australia found that the initial decision made by police at the very gateway into the formal justice system—whether to arrest or summons a child—had significant repercussions for the child’s subsequent passage through the system. More specifically, the very fact of being arrested rather than reported by police proved to be one of the main determinants of a referral to Court, with all the negative consequences which that entailed (Gale et al. 1990, pp. 6–7).

Conversely, when police make more benign decisions such as warning or cautioning a young person, or referring them to a diversionary scheme (such as a panel or a conference) rather than to the Children’s Court, the likelihood of a young person acquiring a criminal record is greatly reduced. Second, the acquisition of a criminal record further serves the techniques of policing—it enables governance through increased police surveillance. The criminal record marks Indigenous people within the area of ‘legitimate’ police work—and the majority of Indigenous Aboriginal people in many rural communities have police records. ‘Whoever a person is, his or her record marks the limits of their ability to redefine their place in the community. To have been noticed by the law is to remain subject to the law’s scrutiny’ (Edmunds 1989, p. 104). For many Indigenous people this marker is acquired when they are quite young and may arise directly from adverse discretionary decisions made by police. Third, it is important to recognise that police intervention and the results of their decisions may constitute the ‘real’ punishment. The events which occur between apprehension by police and final sanctioning by the court may be more punishing in terms of loss of liberty and other forms of personal hurt and suffering than any punishment meted out by the court. The liberal view of policing and the criminal justice system considers the formal outcome of the court process to be the sanction or punishment but this is a distorted view—the real punishment may be in the process leading up to the court adjudication (Feeley 1979). Hogg (1991) has suggested that the police themselves can be seen as forming a semi-independent system of apprehension and punishment. Policing is a ‘form of disciplinary power directed at surveillance and normalisation of particular sections of the


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population through a form of penality that largely operates outside the prison, but utilises its own form of incarceration in the shape of police cells’ (Hogg 1991, p. 15). Importantly, these disciplinary forms of power operate on the ‘underside’ of the legal structure. While the general legal form is explicitly egalitarian in principle, the disciplinary mechanisms which constitute ‘the dark side of these processes’ are non-egalitarian and asymmetrical (Foucault 1979, p. 223). The liberal ideology of the rule of law apparently guarantees a system of equality and rights, but the practices of power differentiate and select particular groups of people for special attention. The decision to intervene In previous chapters it was noted that there is considerable evidence that police intervene in situations involving Indigenous people, particularly ‘street offences’, in often unnecessary and provocative ways. The Royal Commission into Aboriginal Deaths in Custody noted the importance of police discretion in the process of criminalisation, particularly in relation to minor offences. As a result of arrest for trivial offences Indigenous people are criminalised in several ways.3 ‘They acquire criminal records, they are defined as deviant not only in the eyes of the police but of the broader society, they are introduced to custody in circumstances where they feel resentment rather than guilt, and hence arrest and custody cease to be matters of shame’ (Wootten 1991a, p. 269). The Royal Commission found that in dealing with trivial incidents there was considerable room for ‘alternative courses of action by police, depending on how they interpret a situation, what aims they adopt in their policing, what judgments they make and how they exercise numerous discretions available to them’ (Wootten 1991a, p. 269). The death of Daniel Yock occurred more than two years after the conclusion of the Royal Commission into Aboriginal Deaths in Custody. He died in police custody in Brisbane in November 1993. The events leading up to his death provide an illustrative example of a discretionary decision to intervene in a public order situation involving Aboriginal young people. Nine Aboriginal young people (including Yock) aged between 15 and 18 years were in Musgrave Park in Brisbane. The older youths had bought some alcohol and were drinking. A police van began circling the park, driving slowly around observing the youths. When the group left


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the park the police van slowly followed them along the road. Although there was contradictory evidence, it appears that some verbal abuse and various gestures were directed at the police in the van, who called for assistance. Two other police cars responded. Police made a number of arrests for disorderly conduct. Yock was tackled to the ground by police during his arrest. He later died in the police van from a heart attack (Criminal Justice Commission 1994). This case provides a precise example of situations that the Royal Commission into Aboriginal Deaths in Custody sought to avoid. Indeed, a number of recommendations were designed to encourage police to think about whether intervention was necessary in these situations and what alternative types of intervention might be appropriate rather than arrest and custody. Police have a common law discretion to warn a young person and take no further action, except to record the details of the suspected offence and offender in his or her notebook. These informal warnings are sometimes referred to as ‘warnings’, ‘informal cautions’ or ‘cautions on the run’, and are different from a formal police caution. Perhaps in the case of Daniel Yock a warning about the behaviour of the young people involved would have been sufficient. Perhaps no intervention was necessary, and police contact with the Aboriginal–police liaison officer would have been a better option. Irrespective of potential alternatives which were available, police made the decision to embark on the most confrontational approach possible in the circumstances. Cautioning Where a police officer decides that a warning is not appropriate, he or she may decide that issuing a formal caution to the young person is the best method of proceeding. Most Australian jurisdictions provide police with the power to issue a formal caution as an alternative to charging a person with a criminal offence. If a caution is issued the young person is not prosecuted and the matter does not proceed to court. Various studies have indicated that Indigenous young people do not receive the same diversionary benefits of receiving a caution as do non-Indigenous youth. Some of those studies indicate discrimination in police decisionmaking.4 Luke and Cunneen (1995) found in New South Wales that, of the young people apprehended by police, some 5.7 per cent


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of Aboriginal young people were cautioned compared to 12.9 per cent of non-Aboriginal young people. Even when young people had no prior record of either court appearance or caution, it was still found that Aboriginal first offenders had a greater chance of being prosecuted and thus a lower chance of receiving a police caution. This pattern was particularly evident in country areas where two-thirds of Aboriginal interventions occur. The pattern of differential treatment was maintained when the type of offence was held constant. For example, 91.2 per cent of Aboriginal first offenders apprehended for break and enter offences were charged rather than cautioned; 83 per cent of non-Aboriginal first offenders apprehended for the same offence were charged (Luke and Cunneen 1995, p. 21). The difference in treatment of Indigenous and non-Indigenous young people was not explained by either the type of offence or the offending history of the young person. Generally, the data available from other states and territories in Australia support the picture which emerges in New South Wales. In Western Australia, Aboriginal youth are less likely to be cautioned than non-Aboriginal youth. Of all Indigenous youth who are formally processed by the police, around one-third receive a police caution and the remaining two-thirds are charged with an offence. Conversely, two-thirds of non-Indigenous young people are cautioned and the remaining one-third are charged (Aboriginal Affairs Department and Crime Research Centre 1995, p. 18). According to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997, p. 514), the cautioning system in Western Australia disadvantages Indigenous young people and ‘further increases the disproportionately negative treatment they receive under the juvenile justice system’. The Inquiry was told that police were attaching conditions to cautions although there was no provision to do so in the legislation and, contrary to recommendation 240 of the Royal Commission into Aboriginal Deaths in Custody, police cautions were issued without the involvement of parents. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families found that in Victoria Indigenous young people were significantly less likely to receive an official police caution than non-Indigenous young people (11.3 per cent compared to 35.6 per cent in 1995/96). The percentage of Aboriginal offenders dealt with through the police caution program is one-third the rate of non-Aboriginal offenders. Indigenous young people apprehended by police were


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twice as likely to be proceeded against by way of arrest (46.6 per cent) compared to non-Indigenous youth (23.5 per cent). Thus, slightly more than a third of non-Indigenous youth apprehended by police avoid appearing in court (and the likelihood of a conviction and criminal record). Such diversion benefits little more than one in ten Indigenous young people (Mackay 1996a pp. 9–10; NISATSIC 1997, p. 514). Similarly, in South Australia 17 per cent of Indigenous youth received a police caution compared to 36 per cent of non-Indigenous youth, that is, they were half as likely to receive a police caution as non-Indigenous youth (Wundersitz 1996, p. xx). The South Australian situation is noteworthy because official police cautions have recently been introduced as part of a new strategy. The failure of Aboriginal young people to receive the benefits of police diversion had been a feature of the old South Australian juvenile justice system, which utilised diversionary panels. The problem remains although the diversionary system has changed (Gale et al. 1990; Wundersitz 1996, p. xx). Other research, which sought the views of Indigenous organisations, found that there was relatively infrequent use of cautions by police in the Northern Territory. Police cautions were only available for first offenders, a factor which defeats the purpose of diversion and is likely to discriminate significantly against Indigenous young people because of a greater likelihood of prior record (Cunneen and McDonald 1997a, p. 181). Queensland Indigenous organisations believed that there was discriminatory intervention by police against Indigenous young people in the first instance and, arising out of that intervention, Indigenous young people were less likely to be cautioned and more likely to be charged than non-Indigenous youth. Police cautions were not used with Indigenous young people where public order and social visibility were issues—the case of Daniel Yock would tend to support this view (Cunneen and McDonald 1997a, p. 181). Arrest, summons or diversion The Royal Commission into Aboriginal Deaths in Custody commented upon the extensive use of the power of arrest against Aboriginal people, and noted that it was a major challenge to police organisations to ensure that arrest was used only when it was necessary. The Commission recommended that legislation and instructions be reviewed to ensure that Indigenous young people


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in particular were not proceeded against by way of arrest unless such an action was necessary. The Convention on the Rights of the Child (CROC), to which Australia is a signatory, also requires that arrest should be used only as a last resort with young people. Police may decide that the behaviour of a person requires that they be charged with a criminal offence rather than receive a warning or a caution. However, even after the decision to charge, there are still a number of options available, including the use of a summons or court attendance notice. The most punitive option is arrest, which is a punishment in itself and leads to higher levels of custody. Indigenous young people are more likely to be proceeded against by way of arrest than by a summons or court attendance notice. Children’s Courts are more likely to impose custodial sentences on young people brought before them by way of arrest than on the basis of a summons, because the process itself influences the court’s view of the seriousness of the matter and the nature of the offender (Gale et al. 1990). The available research indicates that arrest is the preferred police option when dealing with Indigenous young people. In both New South Wales and Queensland approximately two-thirds of Indigenous matters before the Children’s Court are brought by way of arrest and one-third by way of summons (Luke and Cunneen 1995; CJC 1995). In South Australia, Indigenous young people are far more likely to be brought into the system by way of arrest than non-Indigenous youth: 41 per cent of Indigenous youth compared to 25 per cent of non-Indigenous youth (Wundersitz 1996, p. 204). In the Northern Territory, Indigenous young people comprised 70 per cent of young people proceeded against by way of arrest and 53 per cent of young people proceeded against by way of summons. Similarly, arrest is still the favoured police option for Indigenous young people in Victoria. In Western Australia legislative and policy changes have led to an overall reduction in the number of charges and arrests for young people, but the rate of decrease for Aboriginal young people has been significantly smaller than for non-Aboriginal youth (NISATSIC 1997, pp. 516–7). Bail Indigenous children have a higher likelihood of being refused bail by police and thus held in custody in police stations from the time they are arrested until they can appear before a magis-


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trate. Statistically significant differences arise in rates of overall police bail refusal for Aboriginal and non-Aboriginal young people in New South Wales. The proportion of prosecutions where Aboriginal young people were refused bail was 10.6 per cent; for non-Aboriginal young people it was 6.9 per cent (Luke and Cunneen 1995, p. 24). The probability of being refused bail was particularly associated with prior record. Aboriginal young people were more likely to have a previous record—which in itself was partly derived from earlier adverse police decisions concerning the use of diversionary schemes—and therefore more likely to be refused bail. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families found that there was concern among Indigenous organisations throughout Australia concerning the extent to which Indigenous young people were kept in custody because of the refusal of bail. Data from Queensland indicated that in every year from 1992 through to 1995, over half and sometimes more than two-thirds of overnight detentions of young people in police watch-houses involved Indigenous youth. The major reason was the refusal of bail (NISATSIC 1997, p. 520). The International Commission of Jurists has raised serious concerns about bail conditions for Aboriginal adults and juveniles charged with summary offences. Various conditions imposed by the police and the court include not consuming alcohol, not entering town limits at all or only within specified times, or submitting to a breath analysis when reporting to a police station (ICJ 1990, p. 38). The Royal Commission into Aboriginal Deaths in Custody also criticised unrealistic and onerous bail conditions which set the defendant up for ‘failure’ and further arrest because the conditions were too difficult to comply with. Family group conferencing ‘Family group conferencing’ has become a favoured option for diversion of young people from the courts in recent years.5 Conferences are intended to bring young offenders and their support persons together with victims and their supporters to develop a sense of responsibility for the offence on the part of the offender. They are also intended to reach a mutually agreeable resolution for the harm that has been caused by the offence and to


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reintegrate the offender back into the community. Various forms of conferencing can be found throughout Australia. One of the major problems with conferencing from the perspective of its impact on Indigenous youth is the level of police control over the conferencing process. In most states and territories the police play a crucial role in deciding who would benefit from attending a conference rather than being processed directly through the Children’s Court. Indigenous organisations are sceptical that police can be viewed as independent in this process, especially as police are not subject to any screening or regulatory processes to ensure impartiality in their decision making (Blagg and Wilkie 1995; Blagg 1997). In most Australian jurisdictions the police control key points of decision making: access to the conference, the operation of the process, and a veto over the final agreement. In Western Australia, conferences are restricted to dealing with minor non-scheduled offences, and are only available to first offenders. There are no legal safeguards for the young person, and the police have control over who is referred to the conferences (NISATSIC 1997, p. 524; also Beresford and Omaji 1996, pp. 103–5). The evidence shows that Indigenous young people are being referred less frequently to conferences than nonIndigenous youth. A Perth survey in the first nine months of the scheme concluded that ‘only a small percentage of Aboriginal young people are being referred to the Teams [conferences] and . . . this percentage is gradually decreasing’ (quoted in NISATSIC 1997, p. 524). Other research has confirmed that rates of referral of Aboriginal youth to the conferences in Western Australia are low (Aboriginal Affairs Department and Crime Research Centre 1996). Similarly, in South Australia, Indigenous young people are less likely to be referred by police to a conference and are more likely to be referred to court. They comprise 12 per cent of referrals to conferences, but 19 per cent of referrals to court. In addition Indigenous young people (36 per cent) are almost twice as likely as non-Indigenous youth (19 per cent) to be referred straight to court without the benefit of either a conference or a police caution (Dodson 1997a, p. 33; Wundersitz 1996, p. 204). In Queensland the Juvenile Justice Legislation Amendment Act 1996 establishes ‘community conferences’ as an available diversionary option. Only police officers are authorised to make referrals to a community conference as an alternative to court, although the


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court can refer a matter to a conference after a hearing when guilt has been determined (section 18). Given that Indigenous young people in Queensland are already disadvantaged by police discretionary decisions to utilise existing diversionary alternatives such as cautioning (Criminal Justice Commission 1995), there is nothing in the new legislation which will shift the way police already decide who will receive the opportunity of a diversionary option. In New South Wales, the pilot Community Youth Conferencing scheme was abandoned partly because of attitudinal problems on the part of police (Bargen 1995) and lack of referrals of Indigenous youth to the conferences (Dodson 1997a). A new system, called ‘accountability conferences’ was introduced, which limits more directly the power of police in relation to referral by allowing referrals to be made by the court and the Director of Public Prosecutions. The new legislation places a presumption in favour of conferencing for a greater number of offences, but the number of prior police cautions or conferences must still be considered by police when deciding the eligibility of the young person for a diversionary option (Young Offenders Act 1997, section 37). Given past experiences in the use of diversionary schemes, this requirement may well work to the disadvantage of Indigenous youth. The problems associated with the police role in the conferencing process show the failure to reform policing by placing stricter controls on police powers in relation to young people. Conferencing has simply expanded the options available to police without restricting discretion. For example, the South Australian Young Offenders Act 1993 has formally expanded the police role over young people who admit offences by giving them the power to decide on the use of conferencing and cautioning (Roach Anleu 1995, p. 39). This is precisely the issue which is of major concern to Indigenous organisations. The new South Australian legislation has given police ‘enormous discretionary powers without, it appears, any form of control or vigilance over their discretion’ (Aboriginal Legal Rights Movement and the Aboriginal Justice Advisory Committee 1994, p. 23). The role of police in the conferencing process raises much broader issues concerning the relationship between police discretion and Indigenous communities. The nature and effectiveness of policing is partly determined by the climate of respect for police (Findlay 1993, p. 29). Whether police authority is seen as legitimate or not, and whether police command respect in the


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community, is critically affected by the way they use their discretion. Findlay has noted that, ‘If police discretion becomes consistently perceived by the public as unworthy of respect rather than as ensuring it, then . . . the legitimacy of police authority for the exercise of discretion will be undermined’ (1993, p. 32). This relationship between respect, authority and the use of discretion has particular importance in understanding how Indigenous people perceive the function of police. Lack of respect for police authority and lack of acceptance of the legitimacy of police actions already significantly undermine Aboriginal–police relations. The apparent failure to use discretion fairly further undermines police legitimacy in Indigenous communities. The introduction of conferencing in Australia has increased police powers in a formal sense as ‘gate-keepers’ to the various levels of the juvenile justice system. It has also increased police power in a symbolic sense through the conferencing process itself. It would seem that the police maintain a powerful stance throughout the entire process from when the young person is initially apprehended until the outcome of the Family Group Conference . . . The impact of racism and harassment experienced by many young Aboriginal people is no doubt intensified when the police wield an amount of power in a situation where the young person has very little. This can be compounded by an historical sense of ‘them and us’ that has existed between most Aboriginal people and the police over generations (Aboriginal Legal Rights Movement and the Aboriginal Justice Advisory Committee 1994, pp. 24–5).

Where police authority is founded on community endorsement and community respect, then police discretionary decisions are likely to be seen as a legitimate practice in the equitable operation of the law (Findlay 1993), but this is precisely what is missing in the relationship between Indigenous communities and police. The police function has a particular resonance for Indigenous communities, given the history of intervention already outlined. Thus the use of police in the conferencing process, combined with cultural differences and language difficult ies, may well cause Indigenous young people and their families to appear ‘uncooperative’ within a conferencing framework (Dodson 1997a, pp. 46–7). Indeed, research in Western Australia has indicated that the police presence increases the reluctance of Aboriginal people to attend meetings and contributes to a non-communicative atmosphere for those Aboriginal youth that do attend (Aboriginal


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Justice Council 1995; Aboriginal Affairs Department and Crime Research Centre 1996). Thus, one result for those few Indigenous young people who receive the ‘benefit’ of a diversionary option rather than court, may in fact be the confirmation of their ‘unsuitability’ for lesser community-based penalties.

POLICE CULTURE Despite both popular and governmental definitions of police work as essentially the apprehension of criminals, it is clear that many factors impinge on what types of offences and what types of offenders are targeted by police. Not all breaches of the law are acted upon, nor are all individuals who breach the law pursued with equal vigour. While there are legal, administrative and procedural matters which are likely to impact on the way police carry out their functions, there is also a police occupational culture which defines particular types of events and people as police ‘business’. There are ‘informal’ rules which set the parameters of behaviour within police culture. Policing decisions occur within the fabric of an occupational culture which ‘shapes, sustains and legitimates certain behavioural patterns’ (White and Perrone 1997, p. 50). The occupational culture of police has come under increasing critical attention in Australia, partly as a result of the various state and federal inquiries of recent years which have investigated police behaviour. The Fitzgerald Inquiry argued why police culture is so important in understanding the nature of policing and its effects. The institutional culture of a police force is of vital importance to a community. A police force is numerically strong, politically influential, physically powerful, and armed. It stands at the threshold of the criminal justice system and is in effective control of the enforcement of the criminal law. Subsequent stages in the criminal justice process, including courts and prisons, are largely dependent on the activities of the Police Force, and will inevitably be affected by its deficiencies, especially any which are cultural and therefore widespread (Fitzgerald 1989, p. 200).

The Fitzgerald Inquiry summarised what it saw as key aspects of police culture. These include a high degree of cohesiveness and solidarity among police; a sense of isolation and marginalisation from mainstream society as a result of the nature of their work;


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a suspiciousness of the public which creates an ‘us’ and ‘them’ mentality; a sense of powerlessness and frustration arising from the limitations of the effectiveness of law enforcement; and a problem of perceived low status of the value of their work. These attitudinal characteristics are said to be coupled with a range of structural opportunities for corruption and misconduct, including abuse of the use of discretion, subversion of suspect’s rights and opportunities for illegal personal gain. The cultural value of a ‘code of silence’ protects misconduct through the failure to criticise other police and the failure to enforce the law against other police.6 Certainly, the Royal Commission into Aboriginal Deaths in Custody discovered aspects of police culture consistent with these values. The Commission commented upon the high level of toleration for police untruthfulness, which included tailoring evidence, providing false information in statements of interview and lying in the witness box. Aboriginal deaths in police custody where police untruthfulness was an issue included Mark Revell, Bruce Leslie and Lloyd Boney.7 Isolation, marginalisation and the view that police were under siege was also evident. The Royal Commission found that ‘if police would reverse their strategy of closing ranks in blind loyalty, and instead assist inquiries and courts to get at the truth, their own reputation and the level of respect accorded them in the end would be greatly enhanced’ (Wootten 1991a, p. 297). The ‘code of silence’ and police reluctance to criticise police was found in many of the deaths investigated. According to the Commission, this unwillingness to contemplate the possibility of police misconduct was ‘an attitude reflected in the repeated failure of police investigators to consider whether police acted properly in the care of prisoners’ (Wootten 1991a, p. 298). The Royal Commission also found that the police had an inability to investigate other police. In many of the Aboriginal deaths in police custody investigated by the Royal Commission, it was apparent that police investigators were neither thorough, objective nor impartial. Two examples of this problem can be found in the David Gundy and Bruce Leslie inquiries.8 There was also a demonstrated disdain for the law—an attitude that ‘inconvenient legal rules can be safely ignored’ (Wootten 1991b, pp. 17–18). Obviously the aspects of police culture referred to above are not particular to the policing of Aboriginal people. It is important


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to consider therefore how the exercise of authority and discretion might also be influenced by beliefs about Aboriginal people which receive their legitimacy within both the police occupational culture and the broader society. One way of considering this issue is by analysing the social composition of Australian police forces. Studies based on data from the early 1980s developed a picture of the ‘typical’ police officer as ‘most likely to be a married man, less than 35 years of age, born in Australia, who left school at 14–16 years of age and performing duty in an urban area’ (Brown 1985, p. 124). More than nine out of ten police officers were male and tended to be younger than the general labour force. They were also more likely to be born in Australia and have parents born in Australia than the general work force. Of those born overseas, most came from Britain or Ireland. In commenting on this data, Findlay and Hogg (1988, p. 48) noted that police officers ‘overwhelmingly belong to a distinctive social and cultural strata of Australian society’. More recent research suggests a slight change in composition with more Indigenous people, more women and more people from non-English-speaking backgrounds (Chan 1997, pp. 56–8). Police attitudes towards indigenous people: a culture of racism? One reason for the failure to recruit Indigenous officers is the treatment which those who have been in the police force have received. For example, Collard, a sergeant with 23 years’ experience in the Western Australian Police, resigned because of racist behaviour by fellow officers—after officers urinated and defecated in his coffee cup at a work party. He had previously experienced racist behaviour and had also complained about police misconduct such as drinking alcohol while on duty.9 ATSIC Commissioner Col Dillon served in the Queensland Police Service from the mid-1960s until the mid-1990s. He has stated that the Queensland Police Service ‘was systematically entrenched with unbridled racism. Racism was in no way discouraged and nor was it in anyway accountable . . .’ (Ministerial Summit on Indigenous Deaths in Custody 1997, p. 167). Dillon describes receiving racist comments and taunts ‘almost daily’ from fellow members of the police, an experience which led him to believe that racism was more prevalent within the police service than within the general community. When Dillon decided to assist the Fitzgerald Inquiry with its investigation into police corruption in Queensland, he


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was subjected to what he has referred to an ‘as unrelenting campaign of terror’. Being both an Indigenous person and a ‘whistleblower’ placed him at complete odds with the ‘ethics’ of police culture. In New South Wales, Senior Sergeant Ken Jurotte had to resign from the police because of ongoing racism. He took his complaint to the Anti-Discrimination Board. Before his resignation, Jurotte gave evidence to both the Commonwealth House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs and the Royal Commission into the New South Wales Police Service. He stated: A sergeant of police was referring to Aboriginal prisoners in a cell, in front of constables—he is supposed to be their role model—as ‘dirty, stinking, rotten niggers’. That is the way the man was referring to Aboriginal prisoners. I do not think that is right in anyone’s mind. I am not the hero of the moment but that is just not right. I am not going to stand still while people say to me that they are not going to eat and drink with a pack of niggers and that my wife is a black slut. That is what I blew the whistle on (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 1994, pp. 285–6).

There is also substantial evidence of racist abuse directed by some police towards Indigenous people. A survey of Indigenous youth held in detention in New South Wales, Queensland and Western Australia found that more than nine in ten complained about being abused by police with racist language (Cunneen 1991a). A non-Indigenous Queensland police officer with twelve years’ experience provided a statement to the National Inquiry into Racist Violence which concluded that: There is entrenched racism in the police force and there is an element of police officers who are racist . . . I have been present when racist comments have been made by senior officers. I have also on occasions seen violent behaviour towards Aboriginals by police officers. [There is] consistent and widespread maltreatment of Aboriginal and Islander people by police (HREOC 1991, p. 81).

The same officer stated that another police officer he served with in Townsville had an ‘obsessional hatred for Aboriginal people and he was notorious for bashing them and arresting them for no good reason’ (HREOC 1991, p. 86). His views were supported by the House of Representatives Standing Committee on Aborig-


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inal and Torres Strait Islander Affairs, which found ‘entrenched racist attitudes at senior levels of the Queensland Police Service’ and that institutionalised racism be addressed as ‘a matter of extreme urgency’ (1994, pp. 265–6). In New South Wales various media have shown overt racism by police. In the late 1980s 60 Minutes documented police references to the area in Redfern where most Aboriginal people live as ‘Coon County’, which served to reinforce the image of racist police practices (HREOC 1991, p. 116). The ABC documentary Cop It Sweet followed in 1992 with racist language and discriminatory policing—again in Redfern. At the same time an amateur video was broadcast of police with painted faces in north-western New South Wales imitating two Aboriginal people who had died in police custody. Around the same time in Queensland a wellknown Townsville personality was invited to tell jokes at a police dinner attended by senior police, politicians and local business people. The jokes were racist and offensive, according to a state parliamentarian who was present.10 Surveys of police attitudes towards Indigenous people have been conducted irregularly, and only in some Australian states, but demonstrate the existence of generally negative attitudes and stereotypes. The New South Wales Ethnic Affairs Commission (EAC 1979) conducted a major survey of police attitudes which specifically considered attitudes towards Aboriginal people. The results showed that two-thirds of the police officers who had been in contact with Aboriginal people in the previous five years indicated that they had faced ‘special problems’ in dealing with Aboriginal people (EAC 1979, p. 35). The major problems identified were ‘alcohol related’ (32.1 per cent), and ‘hostility, militancy and lack of co-operation’ (31.4 per cent). In summarising the findings of the survey, the New South Wales Ombudsman noted that ‘the attitudes of police officers towards Aboriginal people in 1978 would be seen today as fundamentally racist’ (NSW Office of the Ombudsman 1994, p. 9) and further that: Some 48 per cent of police officers surveyed in 1978 were in favour of recruiting more Aborigines into the police force, but those who had contact with Aboriginal people were less likely to favour Aboriginal recruitment than those who had no dealings. This finding was disappointing on two levels. Firstly, it suggested there was a greater bias against Aboriginal people, amongst police and in the community than against immigrants. Secondly, it suggested that amongst those


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officers who had come into contact with Aboriginal people there was some degree of conscious rejection of Aboriginal culture (NSW Office of the Ombudsman 1994, pp. 12–13).

Chan (1997) surveyed members of the New South Wales police in 1991 on a number of issues relating to ethnicity. About two-thirds of the respondents to the survey agreed with the proposition that police officers were not prejudiced against Aboriginal people or ethnic minorities. Chan concludes that this at least implied that one-third of officers thought that police were prejudiced. She also found that approximately 10 per cent of respondents ‘provided colourful examples of racial stereotyping, intolerance and hostility towards anti-racist policies’ (Chan 1997, p. 215). In particular, stereotypes concerning Indigenous people as a drunken and criminal class were prevalent. Alder et al. (1992) interviewed police officers in Queensland, Victoria and Western Australia concerning their interactions with youth. Although not specifically concerned with Indigenous people, the results of the interviews indicated similar results to the EAC survey and showed that there are common attitudes among many police. Some 76 per cent of police officers interviewed singled out specific groups that they considered were difficult to deal with. Of these, 47 per cent specified ‘street kids’, 37 per cent specified ‘gangs’ and 31 per cent specified Aboriginal and Torres Strait Islander young people as the most problematic groups. Given the level of discretion exercised by police, particularly in relation to juveniles, it is significant that Aboriginal and Torres Strait Islander young people should be specifically identified as a group who are troublesome to deal with. The results would suggest that there are ongoing problems in terms of the stereotypes of Aboriginal people within police culture. There is little doubt that such stereotypes impact on police activities and decision-making. For instance, Alder et al. (1992) revealed that 96 per cent of officers felt that the degree of cooperation and respect shown by a young person was crucial to their decision whether to proceed formally against that person. Respect and cooperation was mentioned only marginally less than the nature of the offence (97 per cent of responses) in determining how police would react to a young person. In other words, groups seen as troublesome were likely to receive harsher outcomes in police decision making, and Aboriginal and Torres Strait Islander people were clearly defined among this group.


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A recent example of the intersection between the police beliefs about Indigenous people and the transformation of those beliefs into particular policing practices was shown in the ABC documentary Cop It Sweet. Observations were made by police which indicated that Aboriginal people driving new model cars were regarded with suspicion because it was believed that they would be unlikely to own such vehicles—revealing a clear stereotype about their social position. The outcome of being regarded as the driver of a suspicious vehicle was that the person was more likely to be stopped, questioned and subjected to licence, registration and warrant checks. In other words, stereotypes about Aboriginal people led directly to discriminatory police practices. The New South Wales Ombudsman also considered the relationship between racism and the stereotypes which inform police culture. The Ombudsman noted that, despite official denials, there was no doubt that officer behaviour was racist at a number of levels. One of the reasons police do not accept allegations that their behaviour is racist is because they do not understand the dimensions or the nature of racism. According to the Ombudsman, police may be ignorant of the racist implications of their stereotypical responses and unaware that either their conduct may be racist or that there is a problem with such conduct. Police stereotypes about Aboriginal people are narrow and are part of a learnt police culture (NSW Office of the Ombudsman 1994, pp. 46–7). There is also overlap between police views about Indigenous people and their attitudes towards other social phenomena such as appropriate behavioural norms to be expected in public places, or characteristics such as family structure, place of residence or employment. As numerous writers have acknowledged, street policing has been an important function of Australian police work, and it is an area where constant judgements about public behaviour must be made with minimal supervision.11 Historically, police have always made distinctions between the ‘rough’ and the respectable in determining who should be policed and in what manner, and the powers that have been available to them in this area have always been highly discretionary. As Finnane (1994, p. 103) notes, the policing of public order is central to any notion of ‘governing by police’. As a mode of governance it is highly uneven in its impact, with constant demarcation between the respectable and the rough, the good and the bad. Perhaps then the result of recent research which shows other factors (such as


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employment, family, class background, subcultural affiliations, etc.) also influencing how police decide to exercise their discretion with Indigenous people should not be surprising. Thus Gale et al. (1990) found that the major causes of the increasing over-representation of Aboriginal youth in the juvenile justice system were the more extensive criminal histories of Aboriginal children, the negative assessment by police of certain social characteristics (unemployment and one-parent families) more common among Aboriginal people and the reinforcement of originally negative police decisions by uncritical ‘screening panels’ involving police and social workers. These negative police decisions were influenced by a range of non-legal factors, generally ones which disadvantaged Aboriginal young people in police eyes. Policing practice can be considered within the reciprocal concepts of police discretion and the police prediction of trouble (James and Polk 1989, p. 42). Understanding how police predict trouble can cast light on the intersection between the use of discretion and the values within the occupational culture which define Indigenous people as police ‘property’. For example, Piliavin and Briar (1969) argued that police develop and act upon sets of expectations in relation to perceived ‘trouble’, expectations formulated around the symbols of subculture, class and ‘race’. The demeanour of individuals determines police reaction and future predictions of trouble. Similarly, Skolnick (1966) developed the concept of the ‘symbolic assailant’. He argued that police develop ‘a perceptual shorthand to identify certain kinds of people as symbolic assailants, that is, persons who use gesture, language and attire that the policeman has come to recognise as a prelude to violence’ (quoted in James and Polk 1989, p. 49). Piliavin and Briar (1969) observed that black Americans and youth who fitted ‘delinquent stereotypes’ were more frequently stopped and interrogated by police, even in the absence of evidence that an offence had been committed, and were given more severe dispositions for the same offences as those committed by other youth—a finding consistent with more recent Australian studies on Indigenous youth. Black youth were observed by the writers to display a more ‘recalcitrant demeanour’ than other youth, which police interpreted as a confirmation of criminality. The writers noted that a majority of the police officers serving in the particular Juvenile Bureau under study had openly admitted ‘a dislike for Negroes . . . The officers reported that Negro boys were much more likely than non-Negroes to ‘‘give us a hard


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time,’’ be uncooperative, and show no remorse for their transgressions’ (Piliavin and Briar 1969, pp. 163–4). The police justified their selective treatment of black youth by arguing that they were more likely to commit offences. While the evidence supported over-representation among offenders, black Americans were also over-represented among those who were stopped and found to be innocent of any offence. The authors concluded: These [black] youth were accosted more often than others by officers on patrol simply because their skin color identified them as potential troublemakers. These discriminatory practices . . . may well have self-fulfilling consequences. Thus it is not unlikely that frequent encounters with police, particularly those involving youths innocent of wrongdoing, will increase the hostility of these juveniles toward law-enforcement personnel (Piliavin and Briar 1969, p. 165).

Certainly the observations of policing Indigenous people in Australia would support the arguments of Piliavin and Briar. Parker noted in her study of police practices in Perth in the 1970s that ‘certain characteristics of dress, stance or race spell danger to policemen . . . Whenever a group of Aboriginal youngsters, whatever their dress, was seen in [particular Perth streets], the police driver beside me would automatically slow down his vehicle and peer hard at the Aborigines’ (quoted in Lyons 1984, p. 146). The evidence presented to inquiries such as the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence strongly support the view that police define Indigenous people in terms of criminality; the evidence collected on police attitudes also shows a particular dislike for dealing with Indigenous people. The social dynamics through which police develop their ‘predictors of trouble’ focuses attention on the use of discretion, selective enforcement, violence and harassment as components of day-to-day police work and draws our attention to the way in which policing is operationalised. Hogg (1991, pp. 14–16) has argued that police power is exercised according to norms which are unarticulated and grounded in a police ‘commonsense’, the knowledge which forms the basis of selective enforcement and enables the ‘sanctioning of marginal offences and offenders’. The knowledge is transmitted through the organisation and through the occupational culture. It is a knowledge which is reinforced through formal and informal training to identify ‘what is


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suspicious, potentially troublesome, etc. based on time, place, circumstance, demeanour, gesture, character, social location, and so forth and modes of sanctioning that could be utilised to deal with such problems’ (Hogg 1991, p. 16). Lea (1986) has argued in the British context that the dependence of police work on criminal stereotypes provides the institutional framework for the development of racist assumptions which exaggerate and ultimately artificially magnify the involvement of black people in street crime. In his study, many of the police ‘stops’ of blacks were without good reason, that is, were unsuccessful in police terms. Police work relies to a certain extent on criminal stereotypes, which enable the development of racist practices. The stereotypes however, are also defined within the broader social context. The normalisation of Indigenous imprisonment The preceding discussion demonstrates that Aboriginal people are a group about which there is a strongly embedded set of beliefs and attitudes within police culture. Importantly, these beliefs are ‘constantly reinforced and reproduced by routine police practices’ (Wootten 1991a, p. 290). When such practices are based on stereotypes, they become racist practices, irrespective of the intentions of the individual officer. When the practices are routine, legitimated through police culture, and condoned by police management, we confront the problem of institutionalised forms of racism. The view of Indigenous people as not law-abiding, as hostile and uncooperative, as drunken, is a view which redefines them as a criminal class, and corresponds with particular policing practices. Institutionalised forms of racism also reproduce racist views found both among police and the broader community. Police contact with Indigenous people becomes routinised around particular assumptions; that is, police act on the basis of the belief that Aboriginal people are criminal. In the wider society the over-representation of Aboriginal people in the criminal justice system also defines them as a criminal class, as a law and order problem. Thus police culture plays a role in reinforcing both the subordinate position of Aboriginal people in society as well as reproducing negative views within the dominant group. Racist views and attitudes towards Aboriginal people are alarming enough when they occur in the general community, but when held by police can lead directly to racist outcomes. As numerous


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inquiries held by the Royal Commission into Aboriginal Deaths in Custody demonstrated, racist outcomes in policing can have life and death consequences. The way in which police custody is used for Indigenous people provides a window on the relationship between police beliefs and practice, between police culture and police discretion, which the death in police custody of Mark Quayle in Wilcannia highlights. Quayle’s death demonstrated the manner in which Aboriginal people are detained in police cells as a matter of course (Wootten 1991e). It also demonstrated the extent to which stereotyped views of Aboriginal people were held among a range of institutional players, including police and medical staff. Quayle was taken by family members to Wilcannia hospital for medical treatment. He had not consumed alcohol and in fact was suffering from the effects of alcohol withdrawal. He received no treatment and instead was taken into police custody unlawfully. The Royal Commission found that the death of Quayle resulted from shocking and callous disregard for his welfare on the part of a hospital sister, a doctor of the Royal Flying Doctor Service and two police officers. I find it impossible to believe that so many experienced people could have been so reckless in the care of a seriously ill person dependent on them, were it not for the dehumanised stereotype of Aboriginals so common in Australia and in the small towns of western NSW in particular. In that stereotype a police cell is a natural and proper place for an Aboriginal (Wootten 1991e, p. 2).

Placing Indigenous people in police cells was a routine matter in Wilcannia and was often done, as in the Quayle case, unlawfully. Research into police detentions in Wilcannia over a six-month period around the time Quayle died revealed that some 98 per cent of the 259 persons detained in the cells were Aboriginal and over half (56 per cent) of the detentions were related to public drunkenness. Legislation covering public drunkenness in New South Wales states that a person may be detained for up to eight hours or until they cease to be intoxicated, whichever occurs first. In Wilcannia no less than 73 per cent of persons held for drunkenness were detained for a period longer than the permissible eight-hour limit. Police routinely breached the legislation in their detention of Aboriginal people (Cunneen 1989b). There are many cases where the story of Quayle is repeated, the story of Charlie Kulla Kulla in Chapter 4 being almost


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identical in terms of the assumptions which were made about a seriously ill Aboriginal person presumed to be suffering from the effects of alcohol.12 The process of incarcerating Indigenous people has become normalised to the point where it is no longer seen as out of the ordinary, that locking Indigenous people in police cells and watch-houses is a normal, justifiable response. The rationalisation of the process lies in certain beliefs about Indigenous people as a criminal group. How else could we explain the matter-of-fact way in which Aboriginal people with lifethreatening illnesses can be so easily detained, often in circumstances where there has been no clear breach of the law?

DISCRETION, POLICE CULTURE AND HUMAN RIGHTS The adverse use of police discretion against Aboriginal and Torres Strait Islander people raises serious questions about the abuse of human rights in Australia. Potential abuses are particularly apparent in relation to the unnecessary criminalisation and unnecessary custody of Indigenous people. It is arguable that systematic adverse use of police discretion constitutes an abuse of the civil rights of Indigenous people to enjoy freedom from discrimination. The greater use by police of cautioning and other diversionary methods and the discouragement of the use of arrest when dealing with young people is consistent with article 37 of CROC. Yet, as demonstrated in this chapter, the normal procedure in many jurisdictions is to arrest and charge a young person. There is also widespread evidence that in most jurisdictions Indigenous young people are less likely to receive a police diversionary caution than non-Indigenous youth. Such disparities imply a failure to ensure racial equality in the application of legal processes, and hence a failure to comply with articles 2 and 5 of CERD. Several recommendations (numbers 239–241) of the Royal Commission into Aboriginal Deaths in Custody were also designed to encourage the greater use by police of diversionary methods for Indigenous young people. International obligations under CERD require that states amend laws and policies which discriminate against minorities and guarantee equal treatment before the law. The Royal Commission into Aboriginal Deaths in Custody also recommended that arrest should be used as a sanction of last resort for adults (recommendation 87), that arrest should not be used for minor public order offences (recommendation 86) and that public drunkenness be decriminalised and the use of police custody for


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intoxicated persons in unnecessary situations be eliminated (recommendations 79–83).13 Yet the arrest of Indigenous people for minor offences and the use of police custody still occur as a matter of course in the policing of Indigenous people. Throughout Australia, Indigenous people are being arrested, placed in police custody and imprisoned on the basis of behaviour which the police find offensive, but which is precipitated by police actions. The massive over-representation of Indigenous people in arrest and custody figures shows no evidence of racial equality in the application of legal processes and is contrary to the provisions of CERD. This chapter has demonstrated that police decision-making invariably works to the detriment of Indigenous people. The adverse decisions that are made are contextualised by an occupational culture which defines Indigenous people as a problem group—as not law-abiding, as hostile, as drunken, and so on. There is also considerable evidence of the prevalence of racist views among police officers. One result is that the relationship between Indigenous people and the police has been naturalised to the extent that intervention, arrest and custody are seen as normal police reactions to Indigenous people. In day-to-day interventions by police there seems to be little or no questioning of the nature of the response which is utilised. The full force of the law is applied against Indigenous teenagers like Daniel Yock when the crime is nothing more than disorderly conduct, or the law itself is ignored in cases like Mark Quayle, when police decide that being placed alone in a watch-house is the best option for a young man who is in need of health care. The adverse use of police discretion leads to greater formal intervention by the criminal justice system. A decision by police to arrest rather than caution a young person means far more involvement by other criminal justice agencies, such as the courts. The courts themselves consider earlier police decision-making as indicative of the seriousness of the offence and offender. In this sense, the criminal justice system is self-referential, justifying its later decisions for greater punitiveness by its own earlier decisions. Adverse discretionary decisions by police expand the degree and punitiveness of intervention. The decisions have the effect of drawing Indigenous people into the criminal justice system in a way which far outweighs whatever actions may have caused police intervention in the first instance. Police decision-making occurs within the context of police culture. However, as Chan (1997) has emphasised, police culture


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is neither monolithic nor immutable. The occupational culture is a complex phenomenon with variations and one that is subject to change. It exists within a social, political, administrative and legal context; it is not ‘all powerful’ and insulated from external environments which might lead to change. The extent to which reform of Aboriginal–police relations has been engaged with and has been successful will be explored in later chapters. The argument developed here is that the institution of policing is itself fundamental to the high levels of criminalisation of Indigenous people. Effective change is not simply about changing the institution of policing, although this is important—it is also about fundamentally changing the relevant power relations between the (colonial) state and Indigenous people. In other words, changes to the political relationship between Indigenous people and the state are also required. These political changes may require rethinking basic questions of jurisdiction, including whose institutions for maintaining social order are appropriate.


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7 Policing Indigenous women POLICING INDIGENOUS WOMEN

The relationship between Indigenous women and police intersects with processes of both colonisation and gender. There are commonalities in the way Indigenous women are treated by police with the way other women are treated, particularly where they share backgrounds of socioeconomic disadvantage and cultural and ethnic difference from the dominant society. As Alder (1995) has noted, how women are treated by police depends on a complex web of various factors including marriage, employment, children, housing, prior convictions, race and ethnicity, and presumed ‘femininity’. There are multiple disadvantages which arise as a result of the interaction of gender, class and ‘racial’ inequalities. Indigenous women also share a commonality in treatment by police with Indigenous men which derives directly from their Aboriginal status. Indigenous women and men were the subjects of colonial policies which relied heavily on police intervention—a subject already canvassed in this book. A further complicating factor is the gendered nature of the colonial process. Colonial policy was not gender-neutral. It relied on differing intervention strategies which were dependent on factors such as the sex, the age and the ‘colour’ of the subject. Colonial policies developed extensive classificatory procedures and strategies for controlling subjects depending on whether they were ‘half-caste’, ‘quartercaste’, and so on. These strategies also differentiated between males and females, children and adults. These multiple layers of interventions and relationships provide the parameters within which Indigenous women and the police interact in contemporary society. They also provide the context for understanding the particular difficulties which Indigenous women face when dealing with police. For example, while domestic violence is an issue which affects all women, it is apparent that Indigenous women suffer more extreme levels of violence

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than non-Indigenous women. This point is most clearly seen in the rates of homicide for Indigenous women, which are ten times higher than the equivalent rate for non-Indigenous women (Strang 1992). Failure to grasp the specific issues facing Indigenous women has led Aboriginal women to talk about the invisibility which surrounds Indigenous women in discussions of both women in the criminal justice system and Indigenous people in the criminal justice system—in either case the issues facing Indigenous women are blurred or lost (Atkinson 1990a; Payne 1992; Selfe and Thomas 1992). The particularity of the position of Indigenous women cannot be reduced to their status as either women or Indigenous people. In brief, the specific issues which face Indigenous women when dealing with police include high levels of domestic violence and sexual assault; community pressure not to take action against Aboriginal men; a greater likelihood than for non-Indigenous women of arrest and police custody, particularly for street offences; a police and legal system which is non-Indigenous and predominantly male; and a long history of poor relations with police and distrust of the police.1 The inability to understand the specific issues affecting Indigenous women has meant that many inquiries have failed to adequately grasp the nature of a gendered Indigenous relationship with the police, and with criminal justice agencies more generally. The focus of the Royal Commission into Aboriginal Deaths in Custody provides one example. Many Aboriginal women have pointed to the huge disparity between the number of deaths in custody (which were overwhelmingly male) and the much higher number of Aboriginal women killed in communities.2 The level of violence against Indigenous women and the failure of criminal justice agencies to adequately respond to this violence constituted only a relatively small part of the final report of the Royal Commission, nor was there much consideration of the specific nature of the deaths in custody of Indigenous women compared to Indigenous men.

COLONISATION AS A GENDERED PROJECT The process of colonisation involved a range of strategies, many of which were explicitly gendered in either their intent or their outcomes. The exploitation, abuse and rape of Aboriginal women was a feature in point. Much of the evidence for this can be seen in the prevalence of sexual diseases in both the white and Aboriginal


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communities and the growing population of people of Aboriginal and non-Aboriginal descent in the colonial years (Chesterman and Galligan 1997, p. 35). Much of the protection legislation was meant to deal with ‘miscegenation’. Aboriginal women could not marry non-Aboriginal men without permission, and it was an offence for non-Aboriginal men to have sex with Aboriginal women. Indeed, as the protection legislation developed in jurisdictions like Queensland, those under the authority of the legislation had to have permission from protectors to marry anyone. Direct evidence of abuse from the courts and the police is infrequent because the abuse itself was sanctioned. There were occasional comments from parliamentarians concerning the prevalent abuse of Aboriginal women and girls. Occasionally matters came before the courts—often without success. In 1919 a Northern Territory policeman, who was also a protector, was charged with the abuse of Aboriginal women. The charge was dismissed because all fifteen Aboriginal witnesses were found to be ‘liars’ (McGrath 1987, p. 86). During the 1930s the famous Tuckiar case revolved around the murder of a policeman who had sexual intercourse with Aboriginal women—women who were Tuckiar’s wives. In 1934 Tuckiar was sentenced to death by a court in the Northern Territory for the murder of Constable McColl. The High Court of Australia later overturned the decision (Tuckiar v The King [1934] 52 CLR 335). Tuckiar apparently never lived to enjoy his freedom—he disappeared after release from prison (Markus 1990). At various times the forced removal of Indigenous children from their families also involved a targeted strategy of removing pubescent girls to welfare institutions and thus circumventing the childbearing capacities of Aboriginal and Torres Strait Islander women (Goodall 1990a). In some Australian jurisdictions the policies which are now recognised by many as genocidal aimed at reducing the Indigenous birthrate through the removal of adolescent girls. In New South Wales between 1900 and 1940 Indigenous girls bore the heaviest impact of removal policies. Goodall (1990a) has argued that in the early years of this removal policy some 80 per cent of the children removed were female and most were of pubescent age. More recently the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families has documented the sexual, physical and emotional abuse of Indigenous girls who were taken. Dodson has noted that


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‘there is concrete evidence to suggest that throughout the ‘‘protection’’, ‘‘assimilation’’, ‘‘integration’’ eras of the twentieth century, Aboriginal women have been consciously nominated targets of government in its pursuit to destabilise and dismantle Aboriginal society’ (Dodson 1991, pp. 376–7). During the protection era, women lost their right to raise children through forced removals, segregation and welfarisation. Police played an important part in the implementation of those policies, and the day-to-day interactions which arose in enforcing those policies led to the development of particular views about Aboriginal women. As Goodall (1990a) notes, police came to see Indigenous parenting as inherently problematic. Almost by definition, the practice of taking children led to a view of Indigenous women as inadequate mothers, and Indigenous families as ‘pathological’. These past colonial practices are not separate from the processes which serve to fragment Aboriginal communities today, where women are removed from their children through criminalisation and incarceration. Indigenous women are still regularly seen as incompetent mothers. This separation and dislocation of the family structure serves to further restrict the ‘culture bearing’ capabilities of Aboriginal women (Dodson 1991). As acknowledged by the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997), it leads to new processes of Aboriginal child removal which replicate the genocidal policies of the past.

POLICING RESPONSES TO VIOLENCE AGAINST INDIGENOUS WOMEN There is little doubt that the incidence of violence against Indigenous women is a major problem, at the extreme being reflected in high homicide rates. Indigenous women also have much higher reported rates of victimisation for violent crime than do nonIndigenous women. Based on Western Australian police reports, Aboriginal women are 10.7 times more likely to be victims of violent crime than non-Aboriginal women (Harding et al. 1995, p. 22). Further analysis of the police reports by age revealed extraordinarily high victimisation rates for Aboriginal women in the 20–24-year age group. One in ten women in this age group had a reported offence of violence committed against her in a twelve-month period (Harding et al. 1995, p. 23). Much of the violence against Indigenous women is not reported, however, and


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does not lead to police intervention. In Queensland, Atkinson (1990b) estimated that 88 per cent of rape and assault cases in Aboriginal communities are unreported. On Palm Island, Barber, Punt and Albers (1988, p. 96) noted that ‘assault and rape are the two most under-reported crimes on the Island and that it can take something as extreme as pack rape before a woman will complain’. Similarly, the National Aboriginal and Torres Strait Islander Survey in Western Australia revealed that Indigenous women were less likely to report crimes of violence than nonIndigenous women (Harding et al. 1995, p. 18). The Royal Commission into Aboriginal Deaths in Custody noted that there was a widespread perception by Aboriginal women that police were indifferent to acts of violence against them. ‘Domestic violence, rape and even murder have been cited as failing to attract the due attention of police and the criminal justice system’ (Johnston 1991a, vol. 3, p. 41). Aboriginal women throughout Australia have been forceful in arguing that the question of over-policing is misconceived if it fails to consider the fact that the levels of violence perpetrated against Aboriginal women do not receive attention from police authorities. In the arena of protecting women the issue has been identified as one of underpolicing. Aboriginal activist and writer Judy Atkinson has noted that Aboriginal women still lack faith in the criminal justice system to respond to their needs. She quotes a woman from Cape York who states, ‘If a white women gets bashed or raped here, the police do something. When it’s us they laugh. The fellow keeps walking around, everybody knows but nothing is done’ (Atkinson 1990a, p. 6). Similarly, urban Aboriginal women were afraid to call on police assistance for fear of police violence. Atkinson argues that the solution to such problems lies ultimately in the respective communities being given the opportunity to institute their own systems of justice and social control mechanisms. The failure of police to respond to requests for assistance by Aboriginal women was noted by the National Inquiry into Racist Violence. Evidence presented to the Inquiry by a serving Queensland police officer concerned a rape investigation with which he had been involved some years previously: ‘The senior officer investigating the case told the officer that ‘‘You can’t rape a coon’’. The senior officer when interviewing the Aboriginal woman discouraged her from making a complaint and failed to take any action, despite the fact that there were independent witnesses to the rape’ (HREOC 1991, p. 108). This case was one


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of a number of incidents referred to the Inquiry where little or no attention had been paid by police to Indigenous women requesting assistance. More recently the Western Australian Chief Justice’s Taskforce on Gender Bias found that Indigenous women were not protected by some police officers when they were assaulted and that some police failed to enforce domestic violence court orders (Malcolm 1994). Similarly, the Queensland Criminal Justice Commission (1996) in its consultations with Indigenous women was told that police provided inadequate responses when required to investigate violence against Indigenous women. It appears that many police view violence against Indigenous women as something which can be easily tolerated. A Human Rights and Equal Opportunity Commission (1993) report on the Queensland community of Mornington Island provides a localised glimpse of the failure to offer protection for Indigenous women and the reasoning behind police inaction on the issue. Interviews with police on Mornington Island showed recognition of domestic violence as an issue in the community. The same police expressed a reluctance to intervene, rationalising the occurrence of domestic violence in essentially racist terms by saying that such violence was ‘the Aboriginal way’ of dealing with disputes, and that violence was somehow normal and acceptable in Aboriginal communities. There was actual rejection of using the relevant Queensland domestic violence legislation for the protection of Aboriginal women in that community, despite the fact that the Queensland Domestic Violence Task Force had identified Aboriginal women as being particularly vulnerable in situations of domestic violence and that any explanation that such violence was a ‘tribal norm’ should be rejected. A study of domestic violence in the Northern Territory reached similar conclusions and went on to demonstrate the complicity of the court processes in denying the need to deal seriously with violence against Indigenous women (Bolger 1991). In recent years police have refused to use domestic violence protection orders in cases involving Indigenous women. Often the problem of domestic violence (or ‘family violence’ as Indigenous women prefer to refer to the issue) has been defined in racist terms and seen to be outside the ambit of the law. Such an approach to policing and the administration of criminal justice reflects a range of colonialist assumptions, in particular assumptions concerning the inherent violence of Aboriginal family life


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which tie into deep-seated notions of the essential ‘primitiveness’ of Indigenous people. To use Edward Said’s terms, these are Orientalist fantasies about the nature of the ‘Other’ as different and inferior (Said 1978). A further assumption reflects the masculinist views of the colonial order: that Indigenous women are undeserving of protection from the criminal justice system, again tied to deep-seated colonial notions concerning the sexuality and ‘permissiveness’ of Aboriginal women which justify exploitation and abuse. These notions allow the criminal justice system to ignore situations where Aboriginal women are the victims of violence. The third assumption is the more general one that the legal system itself is not there for the protection of Aboriginal people. It is difficult for an operational system which has focused on Indigenous people as a ‘criminal’ problem to turn itself around to see the same group of people as deserving of protection from the law. There have also been constant complaints that Aboriginal and Torres Strait Islander women and girls have been sexually threatened and abused by police officers. The National Inquiry into Racist Violence was presented with numerous allegations of this type from northern and north-western Queensland, the Northern Territory, New South Wales and South Australia. In one example, it was alleged that a police officer in a remote Queensland community detained and lined up young Aboriginal women in front of a hotel on Friday nights and offered them to white patrons for sex (HREOC 1991, pp. 88–9). Other evidence of alleged cases of sexual assault by police officers have emerged in Western Australia (Equal Opportunity Commission 1990, p. 40). Indigenous girls and young women have also been verbally and physically abused by police officers. They have complained of sexist and racist abuse, where they have been referred to as ‘black sluts’, ‘black molls’ and so forth, as well as complaining of threats of sexual assault (Youth Justice Coalition 1990, Cunneen 1991a). The Royal Commission into Aboriginal Deaths in Custody gave limited consideration to the issue of police relations specifically with Indigenous women. In section (b) of recommendation 88, the Royal Commission requested police services to consider whether ‘the police provided to more remote communities is adequate and appropriate to meet the needs of those communities and, in particular, to meet the needs of women in those communities’ (Johnston 1991a, vol. 3, p. 43). The recommendation misses a number of critical points. In the first instance,


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the issue of under-policing is one which affects not only remote communities. Clearly the issue of under-policing, like overpolicing, needs to be seen in the nature of the police response, rather than simply in terms of resources. It is clear that in many Indigenous communities there are ample police but still a grossly inadequate response to policing domestic violence. As Payne (1992) has noted, police strategies over-emphasise public order maintenance and under-emphasise the protection of Indigenous women from violence. More generally it can be argued that while aspects of Aboriginal life are strongly regulated, particularly through the control of public places and a strong police presence in communities, it is only certain aspects of Aboriginal behaviour which are criminalised. Violence against Aboriginal women and children by men, and violence against Aboriginal people generally by nonAboriginal individuals, do not attract the same attention as ‘street offences’ by Aboriginal people. The interrelationship between over-policing and under-policing was concisely summarised by the Canadian Inquiry Into the Administration of Justice and Aboriginal People. The report stated that Over-policing generally results from the imposition of police control on individuals or community activities at a level unlikely to occur in the dominant society. Under-policing usually results from a lack of preventive and supportive police services. While the possibility of simultaneously experiencing these two problems may appear unlikely at first, both arise because police forces are not under Aboriginal community direction, and [police] likely do not know community priorities or cultural assumptions (Hamilton and Sinclair 1991, p. 595).

There are strong historical continuities in the nature of police responses to Aboriginal women. For instance, the current allegations of police sexual abuse of Aboriginal women has a direct link with the sexual exploitation of Aboriginal women during earlier periods of colonisation. Similarly, the failure to take action against those responsible for violence against Aboriginal women rests on a long tradition of seeing Aboriginal women and men as being undeserving of police protection—of being essentially outside the protection of the law. Thus policing permits violence against Aboriginal women. The failure to take decisive action in relation to assaults against Aboriginal women can be considered within the historical


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context of colonial relations where Aboriginal women have been subjected to violence and sexually and economically exploited. In the current context, the failure to offer protection for women stands in stark contrast to how police use their discretion to draw Aboriginal women into the criminal justice system for minor offences.

INDIGENOUS WOMEN AND PUBLIC ORDER OFFENCES The issue of Indigenous women in police custody and the reasons for their apprehension has been largely ignored in the literature. Surveys of people held in police custody regularly reveal that Aboriginal and Torres Strait Islander women comprise around 50 per cent of all women taken into police custody in Australia. That a specific group of women comprising around 2 per cent of all women in Australia should constitute half of the total number of women placed in police lock-ups is extraordinary. It demonstrates clearly the specificity of the relationship between gender and Aboriginality. Indigenous women comprise a comparatively greater proportion of all women incarcerated by police than do Indigenous men of males incarcerated. The 1995 Police Custody Survey revealed that Indigenous women were 58 times more likely to be held in police custody than non-Indigenous women; by comparison, Indigenous men were 28 times more likely to be held in police custody than non-Indigenous men (ATSIC 1997, vol. 1, p. 52). In some jurisdictions the vast majority of women locked up by police are Indigenous. In Western Australia Aboriginal women comprise three-quarters of all women held in police custody and in the Northern Territory the proportion is close to 90 per cent of those detained. The police custody surveys have shown that women in general are detained in police custody proportionately more for offences of public disorder than are men, and that Indigenous women in particular are susceptible to being detained. For example, in Western Australia, in more than three of every four cases where an Indigenous woman was placed in police custody the reason was public drunkenness or an offence related to public disorder. Indeed, throughout Western Australia some 97 per cent of the women placed in police custody for drunkenness were Indigenous. Nationally, Indigenous women comprise nearly 80 per cent of all cases where women are detained in police custody for public drunkenness.


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This evidence raises many questions in relation to Aboriginality, gender and the policing of public places. Public space is clearly regulated in a way that criminalises its use by Indigenous women to a degree far greater than other women. The ramifications of this level of criminalisation for public order offences are profound. A self-report study in the Kimberley region of Western Australia found that one in three Aboriginal women in the region had been locked up in a police cell on one or more occasions (Hunter and Spargo 1993). Furthermore, there is an extremely high probability that Indigenous women will go on to be arrested on more than one occasion. A Western Australian study revealed that there was an 85 per cent likelihood that, after being arrested once, an Aboriginal woman would go on to be arrested on further occasions (Harding et al. 1995, p. 56). Under such circumstances it is clear that police intervention into the lives of Indigenous women is neither unexpected nor unusual.

THE EFFECTS OF PUBLIC ORDER POLICING Imprisonment In Chapter 2 the level of over-representation of Indigenous people in prison was noted. Indigenous women, however, comprise a greater proportion of the female prison population than do Indigenous men of the general male prison population. While there are numerically more Indigenous men in prison than Indigenous women, the proportion of Indigenous women among the female imprisoned population is higher. The differences are even more pronounced when prison receptions are considered, compared to prison census data. For example, in Western Australia Indigenous women comprise nearly 70 per cent of women received into prison in a given year, compared to Indigenous men comprising around 45 per cent of the male population (Kerley and Cunneen 1995). The reason for these disparities is that Indigenous women are invariably serving short sentences, many of which relate to fine default and to convictions for public order offences. Thus it is important to recognise that there is a direct line of institutional intervention, beginning with police discretionary decisions to arrest an Indigenous woman for public disorder through to the future likelihood of imprisonment. Although the offence may be relatively minor, such as swearing in public or drinking alcohol


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in public, the full impact of the intervention may well result in imprisonment in a maximum-security prison, particularly if fines imposed by the court for minor offences are not paid.3 A recent New South Wales report found that a greater proportion of Aboriginal women were imprisoned for minor offences than nonAboriginal women, imprisonments arising from the failure to pay fines for a range of minor traffic and public transport offences, such as disobeying traffic signs, driving with an unrestrained child, travelling on a bus with an incorrect ticket and avoiding railway fares (Vinson 1998, p. 45). It is important to recognise that there are significant differences in the reasons for imprisonment of Indigenous women and non-Indigenous women. In Western Australia, some 20 per cent of the offences for which Aboriginal and Torres Strait Islander women were gaoled related to public disorder, including disorderly conduct, drunkenness and other good order offences. Less than 3.5 per cent of sentenced non-Indigenous women were in prison for similar offences (O’Dea 1991, p. 163). Imprisonment for fine default also impacts differentially. In Western Australia around three-quarters of women placed in prison for failing to pay a fine were Aboriginal and Torres Strait Islander. Fine default itself was the major immediate reason for the imprisonment of the majority of Indigenous women. Six out of every ten Aboriginal and Torres Strait Islander women received into prison are there for fine default. In other words, over a one-year period, the majority of female fine defaulters were Indigenous women and the majority of Indigenous women were in prison for fine default (O’Dea 1991, pp. 207–8). Of course not all Indigenous women are imprisoned for public order offences. Indigenous women are significantly more likely to be in gaol because of violence offences than non-Indigenous women. Carol LaPrairie has investigated the reasons for the disproportionate imprisonment of Indigenous women in Canada. She has suggested three ways that Indigenous women who are living in violent relationships may end up in the criminal justice system for violence offences themselves: they may retaliate with violence against abusive family members; they may resort to drug and alcohol abuse to escape abuse; or their victimisation may lead to the abuse or neglect of others (LaPrairie 1989). Certainly there is supporting evidence for LaPrairie’s argument in Australia. Atkinson (1990a, p. 6) has shown that nearly 90 per cent of Indigenous women in prison in Queensland have ‘experienced


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forms of sexual abuse as children, adolescents and as adults by both white and black males’. Indigenous women also have been imprisoned for killing men who have been violent towards them. The case of Robyn Kina in Queensland captures the interrelationship of male violence and women’s resistance and criminalisation. In 1988 Kina was sentenced to life imprisonment for the murder of her de facto husband, Anthony Black. After five years and two months in gaol, the Queensland Court of Criminal Appeal quashed her conviction, declaring that there was a significant miscarriage of justice.4 The Court found that exceptional difficulties had arisen in communication between Kina and her legal representatives because of cultural, psychological and personal factors. These factors included her Aboriginality, the battered woman syndrome and the shameful (to her) nature of the relationship between Kina and Black. Kina had been denied satisfactor y legal representation and the capacity to make informed decisions. Her trial in 1988 had lasted a matter of hours, during which time she gave no evidence of the abuse, trauma or hardship she had suffered at the hands of Black. Robyn Kina had grown up in a household where her father was violent towards his wife and children. From when she was seven years old, Kina was sexually assaulted by her uncle. She engaged in sexual intercourse from a young age. She described herself as being alcoholic from the age of fourteen. There were a large number of children in the family who were left with the father during Kina’s early adolescence. Sometime from around the age of twelve Kina began prostituting herself for money to keep the household together. Kina met Black when she was in her mid-twenties; she was working as a prostitute at the time. During her relationship with Black she was constantly beaten, repeatedly tied up in bed, repeatedly forced to have anal sex with Black, and on several occasions forced to have sex with Black’s workmates. In the week prior to Black’s murder, he had raped her at least twice. On the day of his death he had demanded anal intercourse which Kina had refused. He then threatened to rape Kina’s 14-year-old niece, who was staying with them at the time. Much of the academic and policy-oriented discussion which emerged following Kina’s acquittal focused on the inadequacy of legal representation for Indigenous women, particularly its inability to consider how cultural difference can impact on access to justice, due process and equality before the law (ALRC 1994; Criminal Justice Commission 1996; Hancock 1997). It may well


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have been the case that had Kina received better legal representation in the beginning she would not have been imprisoned. There is a prior issue also at stake here, and that is the fact that Kina had been criminally victimised continually from an early age without any recourse to legal protection or redress. In the end the only protection she could rely on was her own self-defence. If the Kina case is an indictment of the inability of the legal profession to adequately represent Indigenous women, how much more so is it an indictment of the lack of relevance which police have in offering protection for Indigenous women in the first place? From her sexual assault as a child to her continued rape as an adult, Kina had received no protection from the law. The Kina case shows all too clearly the direct links between victimisation, criminalisation and imprisonment. All Australian jurisdictions have some system of court-enforced ‘protection orders’ designed to prevent acts of violence against women. The initial application of these orders is often reliant on police—particularly in remote communities where there are no other day-to-day representatives of the legal system. Yet it is very clear that these legal protections are not available to Indigenous women (Egger and Stubbs 1993). There have been many other cases where Indigenous women have killed their partners after repeated abuse. In the Hickey case,5 Cynthia Hickey killed her de facto husband after a long period of violence and several attempts to leave the relationship. Again the police and criminal justice system had failed to provide protection (Stubbs and Tolmie, 1994, p. 206). The Gilbert case6 in Western Australia similarly represented a situation of an Aboriginal woman murdering her de facto husband after many years of violence. Evidence before the court revealed that at various times Mavis Gilbert and her children had attended the police station to complain of the violence against her. She had been hospitalised because of her de facto’s violence. Despite years of violence, it was only seven weeks prior to the death that Gilbert was made aware that a restraining order was a legal option. There was widespread knowledge even among police of the deceased’s violence, yet there was a complete lack of action against him. It is important to recognise that Indigenous women are not simply passive victims of the violent situations in which they may find themselves. Many seek to leave violent relationships, others may attempt to utilise the law and seek protection. What is clear


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is that the policing and criminal justice response is simply not meeting the fundamental requirement that it provide protection. Deaths in custody The deaths of Indigenous women in custody highlight some of the specific issues surrounding the policing of Indigenous women, particularly those relating to the use of custody for minor public order offences. The Royal Commission into Aboriginal Deaths in Custody investigated the deaths of eleven women. Nine of the eleven women were in police custody at the time of death.7 There were many commonalities among the nine in police custody: most were held for the offence of public drunkenness, others were there for fine default or offensive language. The place of death and the reason for detention indicate that police decisions to detain Indigenous women for minor offences should be a major concern in preventing future deaths. Overwhelmingly the evidence shows that Indigenous women were not in police cells for serious criminal offences. Not one of the women who died was in custody for a serious offence. Indeed, there was potential for all of the women to have been offered alternatives to custody, had the custodial authorities been of the view to use alternatives. None of these women was incarcerated for violent offences or property offences. Indeed the reasons for incarceration can only be described as minor. In the majority of cases the ‘crime’ was victimless. In other jurisdictions, and indeed for non-Indigenous women in the same jurisdiction, the ‘crimes’ might have been treated as a health problem rather than a criminal one. Although their deaths occurred two years apart, Barbara Yarrie and her sister Fay Yarrie both died in Brisbane police watch-house after being detained for public drunkenness. Similarly, Tiers, Binks and Short died in police custody in Queensland after being detained for public drunkenness. In South Australia, the ‘Woman at Ceduna’ was held in police custody because she had failed to pay a $36.30 fine imposed for public drunkenness. She had been arrested on at least 50 prior occasions, usually for public drunkenness. On at least eight occasions she had been sentenced to imprisonment for drunkenness. She had also been sentenced to imprisonment totalling four months’ gaol on three occasions for disorderly conduct. Joyce Egan died in police custody in South


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Australia after being arrested for indecent language in her own home. The history of the women who died in custody throughout Australia is demonstrative of the history of violence against Indigenous women more generally, violence both interpersonal and institutional. Some of the women had been the victims of ongoing violent assaults, domestic violence and sexual assault. In addition there was the institutional violence inherent in the nature of police, welfare and criminal justice intervention. Six of the women who died in custody had been removed from their families as children, in the cases of Nita Blankett and Christine Jones, at the age of five years. All six women had been institutionalised and been made the subject of welfare and juvenile complaints such as being neglected, uncontrollable, exposed to moral danger and truanting from school. Some had had their children removed in turn. Fay Yarrie’s four children were removed by welfare authorities. The profound history of state intervention in Indigenous family life, particularly that which was aimed at girls, is now well documented, and the connection between forced removal and later health, drug and alcohol and psychiatric problems well established (NISATSIC 1997). The women who died in custody had long histories of incarceration for ‘welfare’ or minor criminal offences. The extent to which police and criminal justice agencies continue to intervene into the lives of Indigenous women is revealed in the lives and deaths of these women. All of the adult women, with the exception of Muriel Binks, had been in police custody on previous occasions. Most had been in prison on previous occasions. Yet what is remarkable in reading through these cases is that many of the women were constantly criminalised because of poverty and alcohol addiction, with a pronounced punitiveness to the intervention. Barbara Yarrie at the age of sixteen years was placed in a maximum security adult women’s prison for failing to pay a fine for under-age drinking. She was later imprisoned for two months for stealing $49. Fay Yarrie and Barbara Tiers were imprisoned for lengthy periods simply for vagrancy. Many of the women ended up in gaol on regular occasions because they could not afford to pay fines. Indigenous women continue to die unnecessarily in police custody despite the Royal Commission into Aboriginal Deaths in Custody and its recommendations. A recent evaluative study on


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government implementation of the Royal Commission recommendations and Indigenous deaths in custody revealed that nine of the 79 deaths in custody between 1989 and 1996 were Indigenous women (Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner 1996, pp. 324–7). Seven of the nine deaths occurred in police custody and two in prison. This is a different pattern from Indigenous male deaths in custody, where 60 of the 70 male deaths occurred in prison. As occurred during the Royal Commission period, most of the nine women were in police custody for minor public order offences such as drunkenness. Many were grievously ill. The death of Daphne Armstrong is illustrative of the situations surrounding these recent deaths of Indigenous women in police custody. Armstrong died on 25 May 1992 after being detained in Brisbane police watch-house for public drunkenness. She collapsed in the cells and later died in Royal Brisbane Hospital. A post mortem revealed that there was no trace of alcohol in her system. Friends of the deceased claimed that she was seriously ill when detained by police, who mistook her symptoms for drunkenness. The coronial inquiry was adjourned after police who were at the watch-house at the time of death sought representation by senior criminal defence lawyers. The Queensland Police Union financed legal representation for the police. When the coronial inquest resumed the police invoked the privilege against self-incrimination and refused to give any evidence other than name and rank (Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner 1996, pp. 421–8). The coronial inquiry concluded that there was no evidence of wrongdoing. At a broad level the lives and deaths of Indigenous women who die in custody emphasise the ‘underlying issues such as racism, alienation, poverty and powerlessness resulting in hopelessness and alcoholism’ (Payne 1992, p. 33). Rather than being helped by the provision of financial assistance, or social and health services, these women are treated as a policing problem to be locked away. Their experiences show that public space is still regulated in a way that criminalises its use by Aboriginal and Torres Strait Islander women. Scutt (1990) has argued that Aboriginal women have suffered because of their visibility in a society that enforces the invisibility of women. As I have already shown, policing practices in many parts of Australia are aimed at controlling and curtailing the social visibility of Indigenous people, but are also informed by the relations of gender. Indige-


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nous women are subject to particular forms of surveillance and intervention because they are both women and Indigenous. While public expressions of certain behaviour may be seen as inappropriate for all women, a response which involves criminalisation is more likely to be directed at Indigenous women. What we know from these deaths is that if Indigenous women are visible in public they are likely to be ‘scooped up and removed from the public view’ (O’Dea 1990, p. 28). They will then be left in a police lock-up with little or no supervision, and with probably no inquiry as to their health. The ultimate effect of these policing strategies, and the discourses concerning race and gender which they embody, is to limit the survival chances of Aboriginal and Torres Strait Islander women in custody. The Royal Commission inquiries into the deaths of Fay Yarrie, Barbara Tiers, Muriel Binks, Barbara Yarrie, Christine Jones, Nita Blankett and Faith Barnes found that death either would have been, or may have been, preventable had medical attention been available with less delay. In other words, if health issues had been prioritised over petty criminalisation these women’s deaths might not have occurred. A case study from the Northern Territory This case study demonstrates a number of the overlapping issues discussed in this chapter, including the victimisation of Indigenous women and the lack of response to this issue by police, the routine use of police incarceration for Indigenous women even for minor public order offences, and the racialised assumptions about Indigenous people and women in particular which underpin police decision-making. It also shows the extent to which the recommendations from the Royal Commission into Aboriginal Deaths in Custody are commonly ignored. At around 1.30 am on a Wednesday morning in January 1996, an Aboriginal woman whom I shall refer to as ‘D’ was arrested along with a number of men in a stolen vehicle.8 At the time of arrest the woman denied any involvement in stealing the vehicle and told police she had been sexually assaulted. She claimed that she and her friend had accepted a ride from the occupants of the car and that she had been subsequently raped. D was taken to Berrimah Police Centre, where it was found there was a warrant against her relating to ‘failing to appear’ in court for a charge of drinking alcohol in public within two


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kilometres of licensed premises. She was placed in police cells and not taken to the Sexual Assault Referral Centre until around 3.45 am, more than two hours after she had been detained. The medical examination corroborated the complaint of sexual assault. The circumstances at the Sexual Assault Referral Centre were disturbing. The doctor, who was not aware that D was in custody, nor that she was going to be returned to the police cells, stated that she may well have admitted the woman to hospital if she had known she was about to be returned to the cells. The doctor noted that, ‘Considering the degree of distress D was experiencing, both emotionally and physically, I consider that the treatment she received was pretty abysmal. The effects of her rape have clearly been downplayed by the police officers involved with no concern at all for the emotional and physical trauma’. Police had the discretion to release D on bail if they still believed that she was involved in the car theft and to make a telephone application to a magistrate for bail in relation to the outstanding warrant, which was for the most minor public drinking offence. However, shortly before 5.00 am, she was returned to the police cells. For a further six hours D was kept in the cells until a statement was taken. She was then kept in custody for a further two hours until 2.30 pm, when transport was organised for her to appear in court in relation to the warrant. D was finally released on bail at 4.30 pm, some fifteen hours after she had been first detained by police and had made the complaint concerning the sexual assault. D was made aware by the doctor of the availability of counselling services, and she indicated that she wanted to make use of the service. The doctor also provided medication for her. The Ombudsman found that ‘the failure to inform the doctor of the complainant’s custodial position resulted in police being unaware of the request for a counsellor . . . of greater gravity is the potential consequences in relation to medication . . . I believe [the detective] had a duty of care to her prisoner which she failed to meet in all the circumstances’. Prior to the Ombudsman’s report being released to the complainant, police officers named in the report were given the opportunity to comment. The detective noted in relation to counselling and medication that ‘by being in custody she [D] was available to receive counselling’, and that ‘had [D] been allowed to return to her camp she would not have taken the medicine’. In relation to the complaint that custody was likely to increase


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the traumatisation of the victim, the detective noted that ‘by keeping [D] in custody providing her with a safe, clean place to sleep with another female for company, she may have been less likely to have been suicidal’. Despite the supposed benefits of custody, D was not supplied with a shower or clothes. She was too embarrassed to ask for a shower so it was not offered. There was confusion over medication, which meant that D was given antibiotics but refused any paracetamol. The Ombudsman found that ‘it is inadequate and unsatisfactory that any confusion arose with respect to the complainant’s situation, to such an extent that she was denied access to pain relief medication’. One of the alleged male offenders was placed in a female cell near the victim. There was lack of access to a counsellor. When a counsellor from the Sexual Assault Referral Centre attempted to follow up D’s request for the service from the night before, she was told by a detective that she could not attend the police interview with the woman and was discouraged from attending the Berrimah Police Centre. D was taken to the court at about 2.30 pm in the back of a caged police truck with a male prisoner. The Ombudsman criticised this practice and found it ‘doubly alarming’ where one person had been the victim of a sexual assault. During the trip to the court it rained and D was wet on arrival. A police auxiliary at the court house described her as follows: ‘Her clothing was quite dirty and she herself was, seemed to be quite dirty . . . she was shaking but that I couldn’t tell, thinking back, whether she was cold . . . or whether it was shock. The longer I was with her the more in pain she seemed to be . . .’ An attempt to find a blanket for her was unsuccessful. The events surrounding the incarceration of D, and the failure to consider the fact that she was the victim of serious indictable offences, shows the routine way in which police constitute a particular reality around Indigenous women: they are seen essentially as ‘criminals’ and incarceration is considered a suitable response. The watch-house commander responded as follows to the Ombudsman. Your report makes an issue over the fact that [D] was placed in custody. I see this as being far more appropriate than releasing her and allowing her to go home. I base this on the fact that in police custody she was placed in a cell with another woman. She was provided with bedding and clean blankets. Her condition was


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monitored by television camera and physically inspected by watchhouse staff [who] were available to tend to her needs. I believe that the watchhouse conditions are far more hygienic, safe and secure than was the alternate option provided. Her home is at the 18 Mile Camp where she would likely to have been sleeping in unhygienic conditions on the ground.

The Ombudsman concluded the watch-house commander’s ‘speculation as to both the complainant’s likely conduct and accommodation are both offensive and patronising. They also overlook alternatives which may have been available’. It is also hard to imagine the same assumptions being made in relation to nonAboriginal women. The Northern Australian Aboriginal Legal Aid Service has drawn attention to other cases where Aboriginal women have been held in police cells under powers relating to protective custody for intoxication after they have made complaints relating to sexual assault. These cases are indicative of a wider disregard for the rights of Indigenous women who are victims of sexual assault and domestic violence. In addition they are breaches of the procedures in police standing orders concerning the treatment of sexual assault victims, and breaches of Royal Commission recommendations designed to eliminate unnecessary detentions in police custody. Changing police responses The issues which prevent Indigenous women seeking protection from police which have been identified by the Australian Law Reform Commission and other bodies include a lack of awareness of legal entitlements and access to justice, and a distrust of the non-Indigenous legal system which includes reluctance to seek police assistance and reluctance to become involved in court processes. Given the evidence presented in this chapter, it is hardly surprising that Indigenous women have little faith in accessing a fair policing response. Yet clearly change is both possible and desirable and there has been considerable discussion around improving police responses to issues such as sexual assault and domestic violence. Reform processes can include community legal education about the legal rights of Indigenous women, and about services which are available to assist women. In other words, one part of the reform process has been to increase women’s awareness of


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legal services and their rights. A useful example is Through Black Eyes: A Handbook of Family Violence in Aboriginal and Torres Strait Islander Communities, which provides information on the extent and nature of family violence and child abuse as well as providing information on legal options available to women (Sam 1991). However, utilising legal options invariably involves the assistance of police and is dependent on improved police training and police awareness of the nature of domestic violence in Indigenous communities. Another area for reform is through changes to the training and gender composition of Aboriginal–police liaison officers. These liaison officers are overwhelmingly male. During the mid1990s, at a time when there were 70 Aboriginal police aides in Western Australia, only two were women (Malcolm 1994, p. 127). In New South Wales very few liaison officers have been women. In central Australia several police aides have been arrested for raping Indigenous women who were in their custody (Payne 1992). Greer (1994) noted, after a series of community consultations with Aboriginal women, that Aboriginal Police Liaison Officers in New South Wales had not been effective in dealing with domestic violence and were either unclear about their role or actively avoided dealing with domestic violence when it arose during the course of their work. The Human Rights and Equal Opportunity Commission inquir y into policing on Mornington Island found that there were generally no women appointed as Aboriginal community police officers although Yuenmanda, the Lardil women’s elder group on the island, had been urging that this practice change. As a result of the Commission’s report, it is now more common for Indigenous women to take on the role of community police officers. However, the practice in most jurisdictions appears to remain one of predominantly relying on Indigenous men to fulfil the function of community liaison or community police officers. In responding to violence, Indigenous women have organised at the community level to pursue their own alternatives to the criminal justice system—alternatives which are typically organised and run by Indigenous women. These include the establishment of women’s refuges in many Aboriginal and Torres Strait Islander communities throughout Australia. In other areas programs have been established along Indigenous models to deal with violence in families and communities. One example is the WE AL-LI workshops which began in Rockhampton. The workshops have


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developed an Indigenous holistic model for healing, one which recognises the deep traumatic effects of colonisation and the traditional strengths of Indigenous peoples as a basis for overcoming violence in Indigenous families and communities (Atkinson 1994). In New South Wales Indigenous women have established Wirringa Baiya, an Aboriginal women’s legal centre which provides assistance particularly for women and children who have been victims of violence. Another localised response has been the development of night patrols in Aboriginal communities to curb the levels of violence. Some night patrols have been a women’s initiative. For example, in Yuendumu in the Northern Territor y the night patrol was staffed by women. In other areas a significant number of the volunteers are Indigenous women. The issue of night patrols as an expression of self-determination is discussed in more detail in Chapter 8. For the moment it is important to recognise that these specific forms of Indigenous intervention have developed out of Indigenous women’s experience of violence and the desire to develop effective means of prevention and control. Conclusion The interaction between Indigenous women and police can be usefully considered within a human rights framework—particularly in the context of expanding and developing human rights to ensure that they recognise the specific experience of Indigenous women. There has already been concern that existing definitions of human rights tend to reproduce male experiences of civil and political life while ignoring the ubiquitous nature of violence against women as a matter of the ‘private’ domain. The United Nations Committee on the Elimination of Discrimination Against Women has been active in defining violence against women as a human rights issue (Charlesworth and Chinkin 1994). The Committee has recommended that violence against women be seen as a discrimination issue which affects other rights such as the right to equal protection under the law, and the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment. The Committee has also recommended that states, when providing periodic reports on compliance with the Convention for the Elimination of Discrimination Against Women (CEDAW), include information on the incidence and


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nature of violence against women and measures undertaken to remedy the situation. In December 1993 the United Nations General Assembly adopted a Declaration on the Elimination of Violence Against Women. The Declaration recognised that violence against women impaired the enjoyment of human rights and that particular groups of women, such as Indigenous women, were especially vulnerable to violence. Violence against Indigenous women in Australia needs to be understood within its specific context. While the violence appears to be more extreme and pervasive than the violence experienced by non-Indigenous women, the potential protection offered by legal intervention through the police and the courts seems significantly less likely to be an option for Indigenous women. Furthermore, there is the specific structural and institutionalised violence which occurs in the policing of Indigenous women. This point is exemplified in the analysis of Indigenous women’s deaths in police custody—in particular the reasons for their loss of liberty and the circumstances of their deaths. There are commonalities between Indigenous men’s and Indigenous women’s experience of policing which in general terms derive from the experience of colonisation and the contemporary policing focus on public order offences and contemporary experiences of police and institutional violence. These commonalities should not disguise the fact that colonisation has always been a gendered process with particular strategies aimed at women. Similarly, the contemporary experience of deaths in custody is quite different for Indigenous women and Indigenous men, the majority of women’s deaths being in police custody rather than prison. The experience of policing is also differentiated by the issue of interpersonal violence: policing has failed to deal with the most significant crime problem facing Indigenous women. The relationship between Indigenous women and the police cannot be reduced to either Indigenous men’s experience of policing or women’s experience of policing. Indigenous women experience some commonalities with both groups, but theirs is a unique relationship borne out of historical and contemporary circumstances.


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8 Governance and the policing of contested space GOVERNANCE AND THE POLICING OF CONTESTED SPACE

This chapter links various issues which relate policing to space, community and governance. Through the notion of space we can explore the intersection between the physical world and social world, how both are constructed by particular relations and how policing plays a part in their regulation. In particular the ‘racialisation’ of space and its connection to concepts of community and governance are discussed. What does ‘community’ mean and how does it relate to Indigenous people? How are Indigenous people creating new social spaces and reconstructing community on their own terms through new mechanisms of policing and order maintenance? There is a growing literature on the cultural geographies of place (Jackson and Penrose 1993), some of which has dealt explicitly with the construction of Aboriginal localities such as Redfern (Anderson 1993). This literature considers both the material construction and the representational or semiotic construction of place. Social space is seen as a modality through which racial subordination has been constructed and naturalised (Keith 1993, p. 209). The process of criminalisation has been intimately connected to racialisation. Minority groups are subordinated through policing, regulation and subsequent criminalisation around their position in social spaces. Policing and the criminal justice system has a determining role in constituting social groups as threats and in producing a society built on racialised boundaries. In Keith’s terms (1993, p. 193), ‘the process of criminalisation itself now constitutes a significant racialising discourse’.

SOCIAL SPACE AND SOCIAL ORDER: THE SPATIALITY OF POLICING

The relationship between culture and space, and the regulation

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of Indigenous people, has been at the heart of much of the interaction between coloniser and colonised in Australia. The dispossession of Indigenous people from their land in many parts of Australia, the introduction of English common law and development of specific legal policies which regulated Indigenous movement were aimed at creating new spaces which provided for the individual ownership of land and capitalist exploitation of labour and resources. Within this new order many Indigenous people were pushed to the sidelines in highly regulated reserves or settlements on the edges of towns. A significant factor in that regulation has been the use of police. The maintenance and enforcement of order by police is performed in a formal sense as part of their role as the public representative of the political and legal authority of the state. However, the order which is enforced is of a quite specific kind and the Aboriginal community occupies a quite specific place within it. Enforcement of street offences legislation . . . can be seen as a continuation and contemporary expression of the historical role played by the police in the construction and maintenance of this order. It is not simply a matter of enforcing community standards as if some consensus existed with respect to these standards. Aborigines are often regarded as a ‘problem’ insofar as they are actively unaccepting of ‘their place’ in this order (ADB 1982, p. 128).

The later part of the twentieth century saw the regulation of Indigenous people in various rural areas as a continual conflict, indeed another kind of warfare, over the control and use of public space. In this ‘war’ Indigenous conduct is redefined as criminal through the various avenues of local government law, street offences or ‘police’ offences. To understand this process it is necessary to consider the way in which social consensus is forged through notions of social order and disorder. In the first instance, social order is defined in a depoliticised and dehistoricised context. Those who are responsible for public disorder are ideologically separated from law-abiding citizens through their construction as ‘criminal’. They are defined outside the social consensus, and outside the community of citizens who are policed within the framework of social consensus. Specifically in relation to Indigenous people, history and politics are evacuated from notions of public order. The history of racial segregation in Australia and the police role in


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maintaining it are forgotten in the name of a new consensus around public order in which all citizens are defined as having an equal stake. Public order and public places also need to be considered as socially constructed ‘space’. A public place is not something which exists purely in the defining act of legislation. It is also a place—a social space which has a particular form and which defines particular activities. Social space can be understood as the material dimension of the social world. Social space, which is at least partially constructed by the dominant interests in society, is also the site of resistance and opposition to those interests. Spatial forms are produced by human action and express and perform the interests of the dominant social groups in a variety of power relationships. Of particular concern to us here, however, are the power relationships of the state. Spatial forms are also earmarked by resistance (Soja 1985, p. 15). At a fundamental level the policing of public space is concerned with maintaining the dominant spatiality—continually reinterpreting and reinforcing particular patterns of social life in the material world. Historically, an integral part of policing has been to enforce a spatially and socially separate existence for Aboriginal people. As outlined previously, historically such a separate existence extended to the use of public space and the use of health, educational, social and recreational facilities. The very fabric of rural life in Australia has been spatially patterned through the processes of specific colonising strategies, policies and practices. For example, Bourke in north-western New South Wales was established as a frontier stockade in the 1830s. The population of Indigenous people in the area declined dramatically during the remainder of the nineteenth century and did not begin to re-establish itself until the 1930s, when they began to move back with the offer of employment in a newly-established meat works. An Aboriginal reserve was declared in the 1940s and pressure was placed on all Aboriginal people to move there. The reserve was located outside the town’s levee banks (although the local council had ensured that the local golf course was protected within the levee banks) and as a result was subject to serious periodic flooding. The reserve was situated adjacent to the sewage treatment works and the local garbage tip—a strong symbolic and material statement by the dominant society about the perceived worth of Aboriginal people (Cunneen 1988, p. 204). As the Anti-Discrimination Board (1982) found, Aboriginal


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reserves in New South Wales were treated as ‘public places’ by police until well into the 1980s. This enabled a level of policing which would have been regarded as totally unacceptable in the broader society. The Anti-Discrimination Board noted that the frequent entry of police patrols onto the reserves (which had become settlements under the New South Wales Land Rights Act of 1993) caused increasing resentment and resistance among Indigenous people. The treatment of reserves as public places shows the paradoxes of policing a colonial order. Aboriginal people were excluded from participation in the social life of public places, yet their own private lives were rendered ‘public’ through policing mechanisms. Space is also a gendered reality. Some of the most profound spatial differences which have impacted upon policing have revolved around definitions of ‘public’ and ‘private’, yet the differences between public and private which provided for the failure to protect non-Indigenous women in the domestic sphere never held in quite the same way for Indigenous women. The notion of a private sphere of social relations was always denied Indigenous people. Indigenous family life was highly regulated in a very public way, at least on reserves, missions and settlements near country towns. However, Indigenous women were not protected from violence. Space and community for Aboriginal people have also been affected by colonial policies of removing and concentrating different tribal and language groups. Many contemporary communities, on former reserves and missions, were constructed through the forcible removal of different Indigenous groups. Muir (1999, p. 11) notes that in Western Australia the larger Aboriginal communities have developed from missions, station camps, reserves or ration depots where Aboriginal people from a variety of tribal backgrounds were brought. The example of Cherbourg in Queensland has been repeated many times across the continent: by 1934 there were 28 different linguistic groups living on the settlement (Wyvil 1991, p. 43). The spatial politics which emerged as a result of the colonial process involved different and sometimes traditionally antagonistic groups being forced to live together. The construction of these communities involved artificial forms of ‘suburban’ living, with people removed from their traditional areas unable to use traditional means of diffusing conflict, such as temporary exile. The provision of various types of infrastructure and services (housing,


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health, education, water, etc.) reinforced the artificial nature of the community. Service provision both presupposed and then enforced particular types of social organisation. In some areas the townships which grew out of earlier colonial policies have generated new sets of conflicts and tensions. Thus the notion of ‘community’ may also become a convenient administrative term for describing complex and heterogeneous groups of Indigenous people. As Rowse (1992, p. 53) notes, ethnographers of Aboriginal groups have been dismissive of the concept of ‘community’ to describe Aboriginal social organisation. Redesigning space for tourism: civic tidiness and the absence of colour The social and spatial positioning of Indigenous people is part of the active construction of contemporary relations between the dominant society and Indigenous people. Since the 1980s a new dimension to the demand to control the behaviour of Indigenous people has been the search for civic tidiness in the light of opportunities for tourism. The construction of social space and the constitution of a ‘public’ has actively excluded Indigenous people. Cowlishaw provides a classic example: public seating was removed from a main street in a north-western New South Wales town because, as a councillor put it, ‘Too many [Aborigines] sat on them, lounged all over them. It didn’t look nice for the tourists’ (Cowlishaw 1986, p. 13). In nearby Brewarrina, the Shire and Chamber of Commerce attempted to control Indigenous public behaviour in the name of civic tidiness and a desire to win a Tidy Towns competition (Goodall 1990b, pp. 26–7). Such processes construct Indigenous people as non-citizens, as not the public and as inherently ‘untidy’. One can find similar examples throughout Australia. In Roebourne in Western Australia the Shire defined particular activities, such as drinking along the banks of the Harding River, as being ‘untidy’ and sought to control the behaviour (Edmunds 1989). Similarly, along the Todd River in Alice Springs, in Townsville and in Cairns Indigenous people have been subjected to a range of interventions from arrest to forced removal from particular areas (Cunneen and McDonald 1997a). It was not drinking alcohol per se which was defined as the problem in these instances, but rather the public location of Indigenous people. Indeed, in Brewarrina and Walgett designated ‘drinking areas’ were allocated by councils away from the main


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streets where Indigenous people were ‘allowed’ to drink without harassment. In Walgett the designated area was set on the edge of the levee bank by the river. With few amenities, the area was described by Commissioner Wootten from the Royal Commission into Aboriginal Deaths in Custody as a ‘miserable place’ during a public hearing in Walgett. It was also revealed during the hearing that twenty individuals had been charged with breaching Local Government by-laws concerning alcohol consumption outside the designated areas. Nineteen of those individuals were Aboriginal. There was also a ‘voluntary’ agreement between publicans and police restricting the sale of alcohol in glass containers, which was apparently applied selectively to Indigenous people (Cunneen 1990d, pp. 42–4). More recently in the Northern Territory tourism has been used as a reason to introduce zero tolerance policing tactics against Indigenous people. Under this banner, the former Chief Minister argued that public drunkenness and other forms of public disorder were having a serious impact on tourists.1 As a result a number of zero tolerance policing ‘trials’ were established in various parts of the Territory in late 1998. ‘Community’ and the politics of spatial separation Policing public order is inextricably linked on the one hand with notions of consensus and citizenship, while on the other hand disorder is attached to particular groups who, essentially, are seen as criminals devoid of social and political legitimacy. Integral to this view of consensus and citizenship is the concept of ‘community’. Maintaining social order is defined as being in the community interest. ‘Community’ is a concept which is highly problematic in policing (as in other areas of social policy), not least because of the definitional problems associated with the term.2 The way in which particular geographical or social groups are designated as forming ‘communities’ has a direct impact on the implementation of policy—whether we are discussing community policing or community sanctions such as ‘conferencing’ and so forth. At a policy level ‘community’ may be seen as a ‘spray-on solution’ to fix any number of social problems (Bryson and Mowbray 1981), while at the ideological level it may provide a powerful device for delegitimising and criminalising the activities of particular groups. ‘Community’ is based on a notion of social harmony, a view of the world which is seen as conflict-free. ‘Gross inequalities, rigid status groups . . . persecution, intolerance . . . are carefully forgotten, so that the real


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‘‘community’’ is seen only in terms of co-operation and harmony’ (Bryson and Mowbray 1981, p. 56). Under the rubric of community, the conflictual social relations deriving from the effects of colonisation disappear. Indeed, relations between groups of people which may involve the exercise of power, oppression and exploitation are deemed non-existent if the definition imposed posits a single community with single interests. The notion of ‘community’ has a particular historical irony in the Australian context, given that so much of the colonial process was concerned with the disruption, dismantling and destruction of pre-existing Indigenous ‘communities’. Thus the application of the term may have a powerful political effect, in deeming conflict between groups as in some way extraordinary and therefore illegitimate. These issues have a particularly important role in policing Indigenous people. It is often said in rural areas where there are significant numbers of Indigenous people that ‘we’re all part of the one community’. Such a statement is usually used for the purpose of criticising Indigenous dissent, as if the expression of dissent undermined an assumed consensus. The point here is that those who talk of ‘the community’ are often those who by virtue of their social and economic power have the resources to enforce particular notions of moral or social behaviour. It is in their interest to define themselves as the ‘community’ or its representatives. The behaviour of those who do not conform is defined as being against or outside community standards. In addition, as noted in discussion of the history of colonisation in Australia, much of government policy has been about excluding Indigenous people from the non-Indigenous ‘community’. It is also apparent from discussion in previous chapters that there are very real social divisions in some areas based on ‘race’. The split between Aboriginal people and sections of the nonAboriginal community who demand more punitive approaches to law and order was particularly apparent in townships of western and north-western New South Wales during the 1980s and 1990s. The increased use of the TRG in western New South Wales referred to in Chapter 4 paralleled law and order campaigns which demanded more punitive police responses towards Aboriginal people (Cunneen 1989a; Wootten 1991a, pp. 303–4), with public meetings in Dubbo during the mid-1980s attracting several thousand people. Petitions to the State government described Aboriginal people as a ‘race’ who were ‘abusive, resentful, aggressive and lazy’ and called on police to ‘clean up’ the streets—a


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call that in this context has a symbolic resonance of moral and racial purity (Cunneen 1989a, pp. 8–9). Similar meetings were held in Bourke between members of the Shire Council, the police (including the police inspector and the police prosecutor) and the visiting magistrate to discuss ‘community conduct’. Given that 87 per cent of persons arrested for public order offences in Bourke were Aboriginal (Cunneen and Robb 1987, p. 91), then what was coyly referred to as ‘community conduct’ clearly meant Aboriginal conduct. In such circumstances the notion of the ‘community’ was being used as a way to enforce criminal sanctions against Aboriginal people. What is important is not so much what was discussed at the meeting, but that such a meeting should have occurred at all. In any formal sense of the system of justice, a meeting between the Shire, the police and the judiciary is totally inappropriate. When the International Commission of Jurists (ICJ) visited Bourke in 1990, the Bourke Chamber of Commerce again called a special meeting to discuss law and order problems in the town. The ICJ description of the meeting gives an indication of the dynamics of ‘race’ and ‘community’ in the area. Those who attended were described in the ICJ report as predominantly white and middle-aged, with the exception of two Aboriginal people and an Asian Australian. The meeting had been notified as a ‘public meeting’. The presence of the ICJ caused some protest from those present, who referred to the ICJ as ‘do-gooders’, and mistakenly linked the Commission with the Human Rights and Equal Opportunity Commission. A motion was put to exclude the members of the ICJ from the meeting, but this was lost on a show of hands (ICJ 1990, p. 43). The issues discussed included juvenile crime, street offences and the consumption of alcohol in public. The Commission noted that the level of concern about law and order at the meeting is disproportionate to the level of serious crime in the communities in question . . . There was also minimal concern about the underlying causes of the perceived law and order problem. Whilst many speakers disclaimed any desire for harsher punishments, the suggested solutions generally entailed creating greater powers for the authorities over the lives of Aboriginal persons (ICJ 1990, p. 48).

The ICJ report offers some insights into the way in which the law and order problem was constructed at the meeting. When an Aboriginal speaker asked the police inspector if he was aware that


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a white person was forcing Aboriginal children to perform sexual acts, he was told by the chairperson that the subject was not relevant to the concerns of the meeting (ICJ 1990, p. 47). The meeting was clearly about Aboriginal people as a law and order problem, and not about incidents such as the sexual abuse of Aboriginal children, which were perceived by Aboriginal people as constituting a crime problem. Law and order meetings in north-western New South Wales continued through the 1990s, with the same focus of demanding more punitive responses to primarily property crime and public disorder. The target for increased policing remains the local Indigenous communities (Hogg and Carrington 1998). The response to the presence of Indigenous people in Hanran Park in Townsville, Queensland, is indicative of the spatial politics around public places and the divisive strategies of relying on criminal sanctions as a substitute for social policy. The local council in Townsville has taken a law and order approach to Aboriginal people in public parks, a particular target being up to 90 Aboriginal people who use and live in Hanran Park. Some people state they have been living there for fifteen years. The park is opposite an Aboriginal-run emergency overnight shelter, which has only 24 beds; there are many more people who require emergency accommodation than is presently available. The shelter is also not equipped as a sobering-up centre. The Council embarked on a number of measures in an attempt to force Aboriginal people out of the park, including closing the toilets and putting up floodlights, but even without basic facilities, the people stayed. There was also confiscation by Council of private property such as blankets and stoves. Police arrested numerous people on minor offences. On 20 September 1995, for example, between fifteen and eighteen Aboriginal people were arrested on charges including public drunkenness, resisting arrest and assaulting police. After this incident the local Council contracted a private security company to police the park. The security guards had firearms and dogs. The people in the park have also been harassed by other Townsville residents and on at least one occasion firebombed from a passing car.3 Both police and security guards have been used in joint operations with Council staff to move people out of the park. Among the measures proposed to ‘clean up’ the parks in Townsville was a by-law prohibiting possession of alcohol, which was widely criticised by a range of organisations and individuals


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including the Human Rights and Equal Opportunity Commission, politicians, local medical experts, academics and residents. The main criticisms related to potential racial discrimination and its ineffectiveness as a way of dealing with the issues facing homeless Aboriginal people. The Director of the Northern Regional Mental Health Services and a doctor at Townsville Hospital noted that ‘enacting such a by-law will only compound and confuse the issues by further criminalising the act of alcohol consumption . . . This will result in increasing numbers of people in our prisons for ‘‘crimes’’ which are ludicrous in the extreme!’.4 The need for a sobering-up centre in Townsville remains urgent. Both major political parties have run recent campaigns which focused on law and order and drew attention to the so-called ‘park people’, the assumption being that the ‘problem’ of Indigenous people in Hanran Park is susceptible to a policing solution. The state Member for Mundingburra called for the location of any proposed diversionary centre to be out of town near the gaol (Cunneen and McDonald 1997a, pp. 56–8). Rather than considering the development of appropriate social policy to deal with drug and alcohol issues, homelessness and poverty, local authorities call upon public and private police to cleanse the area through the forced removal of Indigenous people from public places. Spatiality and jurisdiction The concept of spatiality has become more important in recent works on policing, Aboriginality and crime, much of this work taking a broad-brush approach. Broadhurst (1997) argues that the states with high Aboriginal cultural strength and socioeconomic stress are ‘frontier’ states, and are also the most punitive. Thus the highest rates of Aboriginal imprisonment and police custody are in the ‘frontier’ states of the Northern Territory and Western Australia and the lowest in the settled states such as Victoria and Tasmania. Broadhurst’s ‘frontier’ is defined by jurisdictions with low levels of urbanisation and population density, a large and independent Aboriginal population and a sizeable proportion of land in Aboriginal hands (1997, p. 457). The frontier areas are places where Indigenous cultural strength comes into conflict with a repressive non-Indigenous society which perceives the need to rely on greater levels of punitiveness in the criminal justice system. One of the problems


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with this approach is that criminal justice policy itself can influence ‘punitiveness’ (as Broadhurst acknowledges) and more recent data in fact show that South Australia and New South Wales have higher Indigenous imprisonment rates than the Northern Territory, South Australia has a higher police custody rate than the Northern Territory, and most states have a higher rate of Indigenous juvenile custody than the Northern Territory (see Chapter 2). The National Aboriginal and Torres Strait Islander Survey also shows conflicting variations on self-reports of arrests over a five-year period. South Australia and Western Australia had the highest proportion of Indigenous people arrested, while Queensland and Tasmania had the lowest. Victoria and New South Wales were around the national average (Australian Bureau of Statistics 1994, p. 3). In summary, assessing the level of intervention in different jurisdictions is complex. Certainly, the jurisdiction which stands out as ‘punitive’ on a number of measures is South Australia, not Western Australia or the Northern Territory as might be expected from Broadhurst’s approach. It is also clear that the level of intervention varies across time depending on policies. This variation emphasises the problem with utilising the concept of spatiality in such a broad manner. Tyler (1998) has further developed links between spatial differentiation and the construction of Aboriginal identity. He utilises a four-cell model, partly developed from Broadhurst’s model of the possible combinations of cultural strength and socioeconomic stress. Tyler’s model attempts to explain findings which identify higher rates of Aboriginal offending in rural and remote regions, particularly in those with higher Aboriginal populations. There is a considerable amount of literature which shows that some, but not all, rural areas with large Aboriginal populations have high rates of reported offences and high rates of police custody (ADB 1982; Cunneen and Robb 1987; Devery 1991). In Victoria the work by Mackay (1995) and Allas and James (1996) demonstrates high rates of Aboriginal over-representation in rural areas along the Murray River. Mackay in particular develops a ‘geography of contact’ analysis of policing, particularly around alcohol offences. Part of this geography of contact is related to local council and business demands to improve areas of tourist potential by arresting and removing Aboriginal people. Thus, within the same jurisdiction there may be significant differences in contact with police between rural and urban areas, between


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different rural areas and between different urban areas. Finnane (1994, p. 124) notes that in Queensland the police custody survey of 1988 showed significant differences between urban areas (Cairns and Brisbane specifically) in the incarceration of Aboriginal people. Cairns had a much higher incidence and length of custody than Brisbane. To understand these differences requires localised and specific analysis. In analysing policing in north-western New South Wales, White (1997) argues that the spatiality of contact must be understood through the highly localised demarcation of space as ‘territory’. Following Foucault, for White it is the deployment of power/knowledge within the micro-spaces of particular places which provides the basis for understanding the policing of Aboriginal people in public places. ‘The police patrol of Bathurst Street, Brewarrina, of Oxley Street, Bourke, or of Fox Street, Walgett, is geopolitics writ small’ (White, 1997, p. 281). Carefully grounded analysis is needed to understand spatial relations, policing and criminal justice responses. It is not possible to simply read off from assumptions about the criminogenic effects of either urbanisation or rural settings. Actual social relations are more complex than that, and nuanced by specific histories and contemporary political patterns (Cunneen 1989a; Hogg and Carrington 1998). Indeed, in some jurisdictions such as the Northern Territory Aboriginal people have higher rates of contact with police in urban rather than remote areas (Luke and Cunneen 1998). Thus the generalised claim that Indigenous people have higher rates of offending in rural and remote areas is incorrect (Tyler 1998, 1999). A more fruitful way of understanding spatiality and policing is through theorised and grounded research. There are spatial differences in contact, but these do not necessarily fall along predetermined lines of remote, rural and urban.

RESISTANCE AND GOVERNANCE Challenges against police authority and the criminal justice system by Aboriginal people become part of the daily ritual of resistance. In criminal matters defendants assert, ‘This country belongs to us blacks. You whites stole it off us’ (Wootten 1991a, p. 261). As police patrol through an Aboriginal settlement, a man shouts at them, ‘You cunts, fuck off out of this reserve, you have no right to be here’ (ADB 1982, p. 203). He is subsequently arrested and


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convicted for public disorder. These moments of resistance encapsulate all that has passed in the history of dispossession and colonial policy, as well as the policing of contemporary patterns of spatial separation. What is defined as public disorder may well represent the active refusal of Aboriginal people to accept their position in the dominant spatial order of non-Indigenous society. Aboriginal resistance to policing reflects many levels of tension and conflict. The use of summary offences by police is one way of maintaining authority when there has been defiance or disrespect shown towards them by Aboriginal people. Disrespect in itself can be seen as a form of resistance to police authority. Resistance to police authority contributes to the number and type of charges laid, as well as to the demands by some non-Aboriginal people for more ‘law and order’. Resistance to the demands of non-Indigenous society has been an important part of Aboriginal culture, and the process of control has been continually contested, opposed and confronted. The contest itself has brought continual demands for more police and greater police powers from those at the interface of conflict. Indeed, policing and resistance can be seen as forming a symbiotic relationship. If there was no challenge to authority, and Aboriginal people accepted a pre-defined position of subservience, the overt forms of policing Aboriginal people in public places would be unnecessary (Cunneen and Robb 1987, pp. 201–6, 220). It is not unusual for Aboriginal people to consider certain forms of (criminal) behaviour as legitimate resistance. An interview with a middle-aged Aboriginal woman in Bourke after anti-police riots there provides one example. I just saw something that festered over many years and it just came to a head. You see it nearly every day. You see the anger, the frustration in people . . . blacks are not given a fair go in this town. What have we got? I’m not a violent person. I hate violence, but I feel what happened needed to happen to really wake this town up . . . Really you know from the moment you’re born and you realise you’re black, you’ve had it in this place. As I said I don’t think I’m a violent person, but this is the only way we can get results is through violence (Cunneen and Robb 1987, pp. 263–4).

In recent interviews with Indigenous young people White (1999, p. 43) noted that for many of them public space is experienced as a hostile environment, ‘one in which they are hounded con-


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stantly and rarely made to feel welcome’. The result is a great sense of injustice and anger. For some, reaction and resistance to this hostility may involve social avoidance, for others it will involve strategies of confrontation. Creating a new space for (Indigenous) policing Indigenous resistance should not only be seen as a negative response to colonial power. It is also fundamentally productive in its struggle to open up new spaces, new areas for Indigenous control. In this sense resistance is also central to creating new spaces for the exercise of Indigenous self-determination—even if it is relatively small-scale and operating within the interstitial points of the formal non-Indigenous criminal justice system. A significant body of research and writing indicates the desire of Indigenous communities to exert greater control over the nature and style of policing within their own lands and communities. Indigenous community control over aspects of policing can also have a powerful impact on improving Aboriginal–police relations (Edmunds 1991). In many cases where Aboriginal community justice initiatives have flourished there have been successes in reducing levels of arrests and detention, as well as improvements in the maintenance of social harmony. The success of these programs has been acknowledged as deriving from active Aboriginal community involvement in identifying problems and developing solutions (Aboriginal Justice Council 1995; Cunneen and McDonald 1997a; NISATSIC 1997). In Victoria the main policing initiative run by Aboriginal people is the Community Justice Panels. These panels have been set up in seventeen locations across Victoria and are staffed by volunteers who are rostered on call to provide a 24-hour service. Panel members attend police stations when Aboriginal people are arrested and may assist in taking that person to a sobering-up centre or other service. Panel members also provide support when individuals are held in police custody, and may also provide advice when the court is considering a sentence. The Community Justice Panels receive a small operational budget from Victoria Police, but budget expenditure and membership of the panel are not police-determined. There are also seven sobering-up centres across Victoria which are run by various Aboriginal cooperatives. These are funded by the state government. Much of the work of Indigenous community-based interventions in the area of policing in Victoria relies on the voluntary


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input of Aboriginal people. A somewhat similar scheme is Murri Watch in Brisbane, which was established in the early 1990s and deals with Aboriginal and Torres Strait Islander people in police watch-houses and cells in the metropolitan area. Detainees are released by police into Murri Watch custody. They have invariably been picked up on minor charges or warrants. In Western Australia, the Aboriginal Justice Council has described the success of Aboriginal street patrols in assisting people affected by alcohol, removing underage drinkers from hotels and patrolling trouble spots. The patrols have reduced contact with police by a significant proportion in many areas, data from Kalgoorlie, for example, showing the average monthly number of arrests dropping by nearly half in the two years following their introduction (Aboriginal Justice Council 1995, p. 22). Wardens have been trained and appointed in many Western Australian Aboriginal communities with the view of developing and administering community by-laws. According to the Aboriginal Justice Council, the appointments have led to ‘significant progress in community control and well-being’ (NAJAC 1995, p. 43). Indigenous-run policing patrols have become important in many areas, remote, rural and urban. The Julalikari night patrol in Tennant Creek, established in the mid-1980s, was an early successful example of this type of intervention. It was set up with the cooperation of local police. A protocol (Agreement on Practices and Procedures) was established which defines the relationship between police, the community and the night patrol. The patrol assists in maintaining law and order through intervening in disputes and mediating conflicts. Part of the strength of the program has been the active involvement of senior and authoritative members of the elected Julalikari Council (Edmunds 1991; Curtis 1992). The Tangentyere night patrol and social behaviour project in Alice Springs is another example of an Aboriginal-conceived and operated project which grew out of the need to control anti-social behaviour. It was established to work on issues affecting town camps and to facilitate town camp groups taking control of issues relating to law and order. The night patrols conduct a significant level of police work in the Alice Springs area. They patrol all the town camps and also the social club, schools and other places of importance. Usually if there is a problem in the town camp the night patrol is called first and the police only attend later if required. Night patrols also supervise home detention. A protocol


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with the police has been established which outlines the responsibilities of both police and night patrol in terms of powers, duties, cooperation and so on (Cunneen and McDonald 1997a, p. 80). The community justice groups in Kowanyama and Palm Island in Queensland provide a localised model which is an alternative to usual state policing practices and the formal court system (Bimrose and Adams 1995; Cunneen and McDonald 1997a; Chantrill 1998). Two of the outcomes claimed by both groups are a reduction in offending levels and a reduction in the use of custody. Kowanyama is an example of how supported community initiatives and positive community policing can reduce and prevent crime. The Queensland Aboriginal Justice Advisory Committee has noted that Kowanyama has a police officer who is very pro-active in terms of both juvenile crime prevention and community policing . . . the officer, in cooperation with Kowanyama Community Council, the Community Justice Committee and local elders has initiated crime prevention strategies including sport and leisure activities, inviting young people to assist in appropriate policing duties (quoted in Cunneen and McDonald 1997a, p. 71).

The community justice groups have not limited their activities to the restricted functions normally associated with police and criminal justice, but extend to prevention, the identification of community issues and the provision of local solutions to these issues. Thus these groups are not merely focused on discipline, but also provide assistance and support (Chantrill 1998, pp. 168, 171). The community justice groups in Kowanyama and Palm Island were developed to provide Aboriginal people with a mechanism for dealing with law and order which is consistent with traditional law while still using some aspects of the Anglo-Australian legal system. The authority of the groups derives from the collective and personal authority of group members and from Aboriginal law and cultural practice. A review of the groups found that both demonstrated cultural principles, rules and processes for administering justice which are shared by many in the community (Bimrose and Adams 1995). According to Chantrill’s (1998) research, they used a range of specific and subtle forms of control, including avoidance, prevention of access to alcohol, the requirement for people to leave the community for certain periods, the public declaration of problems and reconciliation, public declaration and shaming, and the provision of a forum for the confrontation of adversaries.


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Positive outcomes include a decline in juvenile crime, particularly at Kowanyama. The absence of reported juvenile offending at Kowanyama for nine months and a continued low rate for thirteen months represented a significant change (Bimrose and Adams 1995). Chantrill’s (1998) evaluation showed that the community justice groups have made a major contribution to managing and limiting problems of social disorder: ‘It is apparent that there have been significant reductions in juvenile crime and recidivism attributable to the operation of the justice groups at both communities’ (p. 164). What is particularly important is that the state and national trends of increasing incarceration of Indigenous young people are not being reflected in the two communities. An important associated development has been the formation across Cape York of a regional support group of Indigenous people involved in community justice initiatives. The benefits of Indigenous community justice policing initiatives extend to broader areas of improving health and welfare. For example, in Western Australia the wardens scheme in Balgo has led to halving the previous number of requests for assistance from the Royal Flying Doctor Service. Hall’s Creek has seen a reduction in the number of emergency admissions to hospital since the establishment of a community patrol (Aboriginal Justice Council 1995, p. 4). Community policing initiatives can also be integrated within the provision of other Indigenous-run services. The Kullari night patrol in Broome is linked to the community wardens scheme as well as to a visitor’s scheme and drug and alcohol counselling and treatment programs. The Western Australia Aboriginal Justice Council has outlined what it sees as priority actions in the support and establishment of Aboriginal community justice initiatives in that state. These include secure funding for Aboriginal community patrols, expansion and support of the wardens scheme, a greater provision of sobering-up centres, Aboriginal involvement in liquor licensing decisions, funding and support for Aboriginal communities to address socially destructive behaviour within the communities, and greater Aboriginal control over non-custodial sentences (Aboriginal Justice Council 1995, p. 14). The integrated provision of service advocated here implies the construction of a social space underpinned by a principle of self-determination for Indigenous people. (The importance of self-determination will be explored in more detail in Chapter 10.) A significant part of the success of Aboriginal justice initiatives


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is related to forms of Indigenous governance which have been maintained in the Aboriginal domain despite the formal authority of colonial power (Rowse 1992; Trigger 1992). Various writers have used the notion of the ‘Aboriginal domain’ to refer to the social, political and cultural space of Aboriginal people, the space where the dominant social and cultural life, and the dominant language, is Aboriginal. Trigger (1992, pp. 100–2) has shown that the Aboriginal domain provides a point of resistance to colonising processes, a way of insulating cultural, social and political space from the European domain. The Aboriginal maintenance of control over their domain occurs in spite of the formal control of European authority. Built on interpersonal relations around kinship, gender, age and knowledge, Indigenous governance may pose considerable challenges to western bureaucratic forms of decision-making (Keen 1989). Structures of decision-making are tied to social life, which for some Indigenous peoples may involve a lack of distinction between public and private/familial domains and the existence of diffuse social boundaries. Aboriginal decision-making may survive because it is also seen as ‘less important’ by those who define power within legalbureaucratic structures. Sutton notes that decision-making and the relative autonomy of Aboriginal people may appear to be concentrated in areas constructed by Europeans as part of the ‘private’ domain, such as entertainment, sport, religion and ceremonial life. Yet it may be these areas which provide the focal point ‘on which the Aboriginal public, political and economic life is lived out . . . they are not a side show, they might be core activities for people and core activities for whole communities’ (quoted in Rowse 1992, p. 21). Aboriginal people may indeed define their own jurisdiction in terms of dealing with ‘lesser’ matters as a strategy to minimise interference by colonial power. Williams’ (1987) careful and extensive analysis of dispute management among Yolngu people in Arnhem Land provides such an example. Yolngu people maintain the features of their law which they regard as essential to the maintenance of society. Strategies to achieve this involved minimising the limitations placed on Yolngu authority, an authority maintained partly by dividing jurisdictions between ‘big trouble’ and ‘little trouble’. Big trouble involved assaults resulting in serious injury or death, where white jurisdiction was recognised at the invitation of Yolngu leaders. Little trouble was defined partly through exploiting the lack of comprehension which


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non-Aboriginal people exhibited of Yolngu kinship networks. NonAboriginal people perceived many Yolngu disputes as ‘family problems’ or ‘domestic disputes’ and defined them as of less importance. The misunderstanding of kinship and its significance in the fabric of social organisation played a part in Yolngu ability to exercise traditional jurisdiction. The sanctions used by Yolgnu leaders include temporary exile, temporary internal exile, withdrawal and restitution (Williams 1987, pp. 96–106), many of which are based on avoidance rather than confrontation. Similarly, elders groups dealing with Indigenous young people in northern Queensland rely on various forms of exile through the use of outstations. In central Australia, managing disputes and preparing for the intervention of the non-Indigenous criminal justice system may involve complex arrangements between various clan groups in the absence of the offender or the victim (Intjartnama 1994). Throughout Australia Indigenous people exercise, and demand the right to exercise, jurisdiction over a variety of offences which are of importance to their communities. In many cases the behaviours which are seen as problematic, and the proposed sanctioning, are a postcolonial mixture of the ‘traditional’ and ‘modern’. Thus, for example, the elders of Mornington Island proposed to the Australian Law Reform Commission that the elders should discipline a range of antisocial behaviour by young people and adults as well as maintain and enforce laws relating to religion, ceremony and the land and sea (Human Rights and Equal Opportunity Commission 1993). Policing processes can also be adapted by Aboriginal communities, the earlier discussion of night patrols providing an example of this adaptation. Dave Curtis, a member of the Julalikari Council, shows how little understanding there may be of the importance of these Indigenous processes among senior police. Curtis (1992) is deeply critical of the view expressed by the Northern Territory police that night patrols should deal only with minor matters, noting that the patrols deal with matters of fundamental importance to maintaining social harmony within Indigenous communities. Contested space: barriers to Indigenous governance The activities and programs discussed above provide a window on the way Indigenous people throughout Australia can and do provide ‘services’ for their own people. The programs demon-


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strate that progressive change can occur, particularly when Aboriginal people are provided with the resources and opportunities to develop their own initiatives. When self-determination is operationalised it can make a dramatic improvement. These initiatives also provide contemporary examples of the type of change that the Royal Commission into Aboriginal Deaths in Custody had in mind when it formulated recommendations on the need to apply the principle of self-determination; the principles of community policing; and the collaborative development and implementation of community-specific programs for dealing with issues relating to young people, public drinking and drunkenness, minimising arrest and providing sentencing alternatives.5 Yet the space in which Aboriginal people operate is contested. There are barriers to Indigenous governance through community justice programs, for while many of the Aboriginal justice initiatives have relied on police cooperation, there is police resistance in some areas to greater Aboriginal control. For example, one of the main problems faced by Murri Watch is police attitudes, Indigenous people complaining that they have been abused, subjected to racist treatment and rough-handled. The incident involving Keith Harrison, who was a worker at Murri Watch, is illustrative. On a particular evening he was called to Brisbane city watch-house to visit three Indigenous people in custody. There he spoke to the senior sergeant and visited the detainees. He then spoke to arresting officers. There were approximately eleven staff in the watch-house at the time. When Harrison went to see the senior sergeant again, an officer called out, ‘You wait there.’ Harrison states that he did not realise that he was being spoken to. The officer grabbed him from behind and a scuffle ensued; Harrison was put in a stranglehold and injured. The Criminal Justice Commission investigated the incident and recommended mediation. Harrison and other members of Murri Watch were enraged by this, particularly when so many of their clients were Indigenous people arrested and detained for minor offences for whom mediation was not an option (Cunneen and McDonald 1997a, p. 79). The fact that Aboriginal schemes operate without statutory authority puts them in an invidious position. The Tangentyere night patrols have no legal authority for the work they conduct, and at times tensions have arisen between police and night patrol workers. At least one night patrol worker has been arrested for hindering police while he was attempting to assist an injured


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person (Cunneen and McDonald 1997a, p. 79). Similar problems have arisen with other night patrols (HREOC 1991; Curtis 1992). The lack of statutory authority is a widespread problem for virtually all Indigenous justice programs. A customary law workshop held in Kowanyama in 1998 recommended, among other things, that ‘community justice groups must be recognised as an authority and protective legislation should be in place to allow the Elders to freely address local issues in the appropriate customary law manner’ (Kowanyama Customary Law Workshop 1998, p. 467). Without statutory authority, Indigenous programs are dependent for their operation on the goodwill and cooperation of local police and other criminal justice personnel. Adequate resourcing and the development of effective partnerships are two further requirements. Chantrill (1998, p. 163), in his evaluation of the Kowanyama and Palm Island community justice mechanisms, has argued that these initiatives will fail if there is not adequate support from government, particularly in training and resources, and if there is no attempt to build partnerships between government agencies and communities. Similarly, the problem of resourcing night patrols is significant. In the Tangentyere night patrol there is little facility for training and the scheme runs on a mixture of some paid positions, some workers on work for the dole (CDEP) and others who are volunteers. Non-Indigenous mechanisms for measuring outcomes from programs may also work against the effectiveness of Indigenous community justice projects. For example, Tangentyere has noted that it is difficult to measure a direct impact of the night patrol in reducing police custody levels. The night patrols are proactively picking up people, some of whom may have gone into police custody previously, while others might simply have been ignored. The night patrols are actively measuring the extent of certain types of offending behaviour in the Aboriginal town camps in Alice Springs for the first time and, as a result, may be deflecting some people from police custody while drawing attention to others. In line with the need for recognising flexibility in measuring success, there is also a need for government recognition of the innovative approaches that may emerge from communities. Unfortunately, government responses are too often inflexible in terms of programs and demand a ‘one size fits all’ approach, rather than promoting distinct and distinctive Aboriginal community initiatives. Finally, it is important to note that vigilantism is another process which actively prevents Indigenous people from using


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public space and from developing their own justice mechanisms. There is a long history of vigilantism against Indigenous people in Australia—from the punitive parties of the nineteenth century to the gangs of white young men that kept Aboriginal people ‘in their place’ in various country towns during much of the twentieth century.6 Some of the more recent connections between vigilantism, gangs and white supremacist groups were identified in the National Inquiry into Racist Violence (HREOC 1991). Complaints about attacks on Aboriginal people by people wearing Ku Klux Klan apparel came from several areas in Queensland, Western Australia, the Northern Territory and New South Wales (HREOC 1991, pp. 77–9). Threats to establish white vigilante groups have been a constant theme in areas where Indigenous people have been identified as ‘law and order’ problems. In northwestern New South Wales during the 1980s there were constant demands from law and order lobby groups that police ‘give them the names’ of Aboriginal repeat offenders so that they could exact their own form of justice (Cunneen 1989a). More recently Hil (1998) has noted the rise of vigilantism directed against Indigenous young people in Townsville. Family group conferences: Indigenous governance or governmental tokenism? There has been a widespread policy imperative, particularly since the Royal Commission into Aboriginal Deaths in Custody, to achieve greater involvement of Indigenous people in various aspects of policing and sanctioning. Much of this has occurred within the context of community policing and a greater apparent recognition of the contribution Indigenous people can make to a justice system which has broader legitimacy. Much of the change has also been superficial, relying on grossly simplistic notions of Indigenous society and providing little in the transfer of power from the formal criminal justice system to Indigenous communities (Cunneen 1997; Blagg 1997, 1998). The lack of statutory authority for Indigenous decision-making has allowed tokenism to flourish. Along with this, some of the changes, while being represented as an increase in Indigenous community involvement, may in fact represent further extensions of state power into Indigenous communities. As was shown in Chapter 6, various schemes for police cautioning and the use of family group conferencing provide


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examples of the failure to curtail police discretion at the expense of Indigenous decision-making. There has been a general trend to provide in legislation for Indigenous elders to issue cautions to and to discipline Indigenous young people in place of police officers, provisions found in recent New South Wales, Queensland and Tasmanian legislation. However, the actual decision as to whether it is more appropriate to use a police officer or an elder does not rest with the Indigenous community. It is still the state police who make the decision about what is in the best interests of the young person. Queensland provides an example of how superficial these changes can be without providing for greater control over police decision-making and ongoing monitoring systems. According to the Queensland Government submission to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, ‘the use of respected persons to administer cautions allows for cautions to be more meaningful to Aboriginal and Torres Strait Islander children’ (quoted in NISATSIC 1997, p. 515). However, the available data on the use of cautions are ‘extremely unreliable’ and cannot distinguish between Indigenous and non-Indigenous young people. Furthermore, ‘information is not available at this time’ as to the use of respected elders in the cautioning process instead of police, although ‘a survey could be conducted . . . providing appropriate funding could be obtained’ (quoted in NISATSIC 1997, p. 515). In other words, the Queensland Government had no idea at all of the extent of compliance with, or effectiveness of, its legislative initiatives in this area. Two separate independent reports cited by the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families showed that in fact Queensland police were not using Indigenous elders to administer cautions (NISATSIC 1997, p. 516). Without control over police discretion it is unlikely that Indigenous people will be given the opportunity to discipline their young people. Simply ‘making a provision’ for cautioning by elders, without any obligation or shift in decision-making power, is tokenism. The decision as to who cautions an Indigenous young person should reside with Indigenous communities and organisations. Similarly, in general the new legislation establishing family group conferences provides neither recognition of Indigenous community justice processes, nor control over police discretion,


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nor a shift in the location of decision-making power to Indigenous communities.7 The legislation in various states was introduced without adequate negotiation and consultation with Aboriginal communities and organisations, and with insufficient regard paid to Indigenous concerns. This is particularly the case where conferencing is only available to first offenders—a requirement which virtually excludes Indigenous young people. By and large, conferencing in Australia has been an add-on feature to more punitive changes in juvenile justice legislation, such as the use of mandatory minimum terms of imprisonment and the greater use of adult courts for sentencing juveniles convicted of particular offences. At present there is no statutory requirement in any family conferencing legislation in Australia to provide for Indigenous decisionmaking. There is no provision for Indigenous organisations and communities to make decisions about whether their children would be best served by attending a conference, about what role (if any) the police should have in a conference, how the conference should be organised and so forth. The best that is included in new proposals is that when conferences which involve Indigenous youth are held, an elder or other representative of the young person’s community must be invited. Again this represents only a tokenistic recognition of Aboriginal people and their right to self-determination. Conclusion Blagg (1998) discusses the need to imagine and open up new pathways and meeting places between Indigenous people and the institutions of the coloniser—points where dialogue can take place. He refers to this as the ‘liminal spaces’ where dialogue can be generated, where hybridity and cultural difference can be accepted. A liminal space is a place where we accept that what is often taken for granted as normal and unproblematic is a landscape imbued with the institutions of the coloniser—a landscape where the cultural artefacts of Indigenous people are denied validity. What is demanded here is the creation of new spaces where Indigenous communities can formulate and activate processes that derive from their own particular traditions and conditions. Opening up dialogue has always been difficult. It is clear that the Aboriginal domain has continued not only to survive but to


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develop in many places throughout Australia. Aboriginal space continues to be defended and where possible extended. In contrast, non-Indigenous governance through policing, and the broad spectrum of government policy and programs, tends to circumscribe and delimit the struggle for Indigenous autonomy. In this context, we can conceptualise governance in two interrelated forms, the governance of the state and Indigenous governance (or what has been referred to as the Aboriginal domain). O’Malley (1996) notes that these can also be seen as government rule and Indigenous resistance, while making clear that the relationship between resistance and rule can be reflexive and productive; ‘if resistance and rule actively engage with each other, then rule is at least potentially destabilised and subjected to a transformational politics’ (O’Malley 1996, p. 12). According to O’Malley state programs and policies (technologies) which allow ‘government at a distance’ have been attractive to government and have included ‘community-based’ processes. These have involved apparent Indigenous forms of control where they are seen as complementary to the broader aims of government. The attempt is usually made to appropriate certain aspects of Indigenous forms of governance and to ignore others which are seen as irrelevant. Perhaps more prosaically, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (1990, pp. 50–1) found that common Indigenous complaints about Government agencies engaged in consultation with Indigenous communities included: the agencies’ narrow choice of people to consult with; ignoring a variety of opinions and interests within communities; ad hoc and presumptuous demands made by those wishing to consult; poor communication, leading to inadequate comprehension of issues; lack of awareness of Aboriginal needs; and preconceived agendas. Having said this, however, the Indigenous domain has also shaped the nature and form of government intervention. In other words, the Indigenous domain has played a constitutive role in outcomes. Indigenous governance has been maintained in the Aboriginal domain, despite the formal authority of colonial power (Keen 1989; Rowse 1992; Trigger 1992). For these reasons Indigenous resistance has not only been negatively opposed to colonial power, it has also been highly productive in opening up new spaces for the exercise of Indigenous authority in the realm of policing and the maintenance of social order.


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9 The reform of policing policies THE REFORM OF POLICING POLICIES

It is now appropriate to consider the formal responses of police services to the types of problems already identified. Police have adopted a variety of approaches to improving relations with Indigenous people but, as the Royal Commission into Aboriginal Deaths in Custody recognised, there is no simple magic formula. For change to be effective it must be built on the basis of negotiation with local Aboriginal communities and have their full support (Wootten 1991a, p. 314). Potential police responses to Aboriginal issues cover a range of different policies and programs. They include the broad policy and organisational direction of the particular police service as well as the variety of particular programs aimed at Indigenous issues. These programs might include new recruit and in-service training for police in Indigenous issues; police recruitment strategies for Indigenous police officers; the recruitment, roles and utilisation of Aboriginal community liaison officers and Aboriginal community police; the establishment and function of crosscultural advisory units; the interpretation and practice of community policing strategies in relation to Aboriginal communities; and management policies for the oversight of discretionary decisions by police at the local level. Much of the change in policing during the 1980s and 1990s was brought about within the broad policy framework of community and problem-solving policing. Community policing has been a powerful influence on policing developments, even if its adoption has been uneven and contradictory and, as discussed more fully below, the impact on Indigenous people has been problematic. Community policing is difficult to define but it at least implies, according to a senior New South Wales police officer, ‘the professional community-based police officer working with the particular community of his/her beat to solve . . . local problems’

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(Nixon 1990, p. 232). Also implied is greater attention to crime prevention and multi-agency approaches to problem solving, as well as decentralisation and devolution of power (Burke 1998, p. 14).

COMMUNITY POLICING AND PROPORTIONAL RESPONSES The policy initiatives involved in community policing sit uncomfortably with the issue of over-policing already discussed. In towns with a large police presence it is difficult to see how the rhetoric of community policing can be matched with the feeling among the Aboriginal community that they are the object of constant and adverse police attention. The ‘local problems’ which community policing might be called upon to resolve are in reality complex social divisions generated by racism, marginalisation and the history of colonisation. Although the problems of racial tension and poor Aboriginal–police relations manifest themselves at the local level, the genesis of these issues lies more deeply in the specific history of colonial relations across Australia. As discussed earlier, the increased use of tactical and paramilitary police groups (such as the TRG) in Aboriginal communities during the 1980s and the 1990s occurred at the same time as police services were moving generally towards a greater public commitment to community policing. The conjunction of paramilitarism and community policing highlights both the contradictory movements in policing policy and strategy and the extent to which Indigenous communities might be defined as outside the broader definitions of the ‘community’. A feature of police tactical squads is that they are structurally removed from the process of community policing. For example, tactical response officers are normally not within the local patrol command structure. They are responsible to their own senior officers who are in turn responsible to either regional commanders or senior executive police.1 Police restructuring occurred in several Australian jurisdictions in the late 1980s and early 1990s with a view to establishing a regionalised system capable of implementing community policing. Senior police noted at the time that ‘the effect of the new management arrangements was to place the majority of services at local level and to make lines of accountability unequivocal—through state, region, district, division and patrol’ (Nixon 1990, p. 234). While the restructuring emphasised line management down to the patrol level (and the accountability that


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entailed), tactical response police remained outside of this structure. Perhaps the most important implication of the use of tactical response police in Indigenous communities is that ‘relations between the normal civil policing agencies and certain sections of the public have deteriorated to such an extent so as to necessitate a paramilitary response’ (Cunneen et al. 1989, p. 121). The nature of tactical police means that they are ‘not required to construct localised relationships or networks but to be ready to respond to situations judged in advance to be problematic and as likely to warrant special tactics and usually force’ (Hogg 1984, p. 50). The evidence discussed in earlier chapters shows that the use of tactical response police in Aboriginal communities has had the effect of galvanising opposition and resistance, and of increasing feelings of harassment—from the Swan Valley in Western Australia to the north-west of New South Wales. The use of paramilitary police squads implies the very antithesis of a reciprocal association between police and community. There is a predetermined absence of any relationship to a local community in all aspects of training, command structure, location, equipment and operational duties, nor is there any requirement to consider the long-term effects of particular methods of control. In addition, because of the nature and duties of such squads, the style of intervention is likely to revolve around the routine use of force. The consequence of such policing methods is further antagonism, alienation and resistance from those groups which are the object of control, indeed their further removal from any possibility of community policing. Lord Scarman (1981), in his report on the Brixton disorders in the UK, argued that paramilitary police tactics challenged the authority and effectiveness of local police, and jeopardised accountability, consultation and community policing strategies. This type of intervention was particularly dangerous where there were local racial tensions. Negotiating with communities A key area for the implementation of community policing strategies has been the use of community consultative committees to give effect to the principles of community involvement (see, for instance, Fitzgerald 1989, pp. 230–3). The composition and maintenance of such groups clearly poses problems in areas where there


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is social polarisation. In addition they may simply provide a forum for co-opting sections of minority groups to an apparent consensus. For example, in some townships in north-western New South Wales the community consultative committees are comprised equally of Aboriginal and non-Aboriginal members, which might appear on the surface to be adequate recognition of two semi- independent communities. Yet the relevant positions of power mean that Aboriginal participants may be forced into particular decisions in the name of community consensus. Aboriginal community members may be handpicked for their compliance. The non-Aboriginal members of community consultative committees often represent the interests of the local council and the Chamber of Commerce. Indeed the meetings may be held in council chambers. Committees formed in such a way become a forum not for democratic or participatory decision-making, rather for the exercise of political power by one group over another, possibly masking the sectional interests behind certain policies to present them as representing the wishes of the whole community. These types of problems have been identified in various reports. For instance, a submission from the New South Wales Office of Aboriginal Affairs to the New South Wales Ombudsman noted that ‘police/community consultative groups are still manipulated, or Aboriginal people selected for their compliance’ (cited in NSW Office of the Ombudsman 1995, p. 44). Similarly, the Royal Commission into Aboriginal Deaths in Custody found that while these committees ‘have varied in their effectiveness, on the whole they do not appear to have been successful in involving people who are representative of the Aboriginal community . . . in particular that part of the Aboriginal community which feels at odds with the police’ (Wootten 1991a, p. 320). The Royal Commission into Aboriginal Deaths in Custody made specific recommendations about how community policing might be developed and about the role of negotiation with Indigenous people in the process.2 A recent evaluation of the responses by Indigenous organisations to how these recommendations are being implemented varied between states and territories and, indeed, with regional variations within states. This variable response is not surprising given both the nature and the problems in developing effective community policing. In some areas, it was noted that involvement of Aboriginal people simply did not occur. In other places, attempts to involve them had been unsuccessful, although it was not clear why the failure had occurred. In New


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South Wales it was noted that in some patrol areas police managers did not know how to consult and negotiate with Aboriginal people—they were seen as the ‘problem’ for police rather than as a key to developing solutions. In the Northern Territory, according to police, there was no set format for negotiations. While there were memoranda of understanding between local police and communities in some areas, the process appeared ad hoc (Cunneen and McDonald 1997a, pp. 94–5). It should be noted that recommendation 215 of the Royal Commission in particular called for open and frank discussions about complaints by Indigenous people against police, even if there were no formal complaints lodged with review bodies. The reasoning behind this is the widespread recognition of the failure of police complaints mechanisms to adequately deal with the broader issues affecting Aboriginal people. The issue was of particular concern to both the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. Unless complaints are dealt with effectively there is unlikely to be sustained improvement in Aboriginal–police relations. In some jurisdictions police services have Aboriginal Strategic Plans which include the establishment of monitoring procedures to ascertain how many complaints are made against police by Indigenous people. Despite the formal commitment of police services to improve relations with Indigenous communities, in many parts of Australia it is general duties police who have been allocated the task of liaison. For example, Aboriginal Liaison Officers in Victoria are non-Indigenous police officers. They are situated in police districts where there are significant numbers of Aboriginal people and have the role of developing relations with local Aboriginal communities. The positions are part-time and the officers are also required to undertake normal police duties. Similar problems have been identified in Queensland (HREOC 1993). This method of developing community relations is often inadequate because the officers involved tend to be junior, without authority, clear responsibilities or duties, or a specified budget. Complex Aboriginal–police relations are unlikely to be effectively improved with this type of response—despite the best intentions of individual officers. Regionalisation has also brought a range of problems to bear on police responses to Aboriginal communities. While regionalisation gives greater autonomy for policy to regional and local


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commanders, the impact of central policy depends on the understandings and interests of those commanders. Without effective central monitoring there is substantial variation in their application and commitment to Indigenous policies. A significant negative consequence of regionalisation has been the dilution of monitoring and coordinating capabilities (NSW Office of the Ombudsman 1995, p. 38).

ABORIGINAL POLICY STATEMENTS AND ABORIGINAL STRATEGIC PLANS Many police services in Australia have developed Aboriginal Policy Statements and Aboriginal Strategic Plans. Events such as the ABC documentary Cop It Sweet and the ‘Bourke Outback Trek Incident’ (where off-duty police were caught on video imitating Aboriginal people who had died in custody), as well as the findings and recommendations of National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody, brought about changes in the police approach to Aboriginal issues in the 1990s.3 For example, in December 1992 the New South Wales Police Service released an Aboriginal Policy Statement. This statement recognised the need for police personnel to have a sound knowledge of the effects of colonisation and dispossession on Aboriginal people, and the need for an understanding of the police role during the frontier period and subsequent ‘protection’ period. The statement recognised that there are many contributing factors to the over-representation of Aboriginal people in the criminal justice system, and that colonisation and assimilationist policies have led to Aboriginal people being the most economically, socially and politically disadvantaged group in Australia. It also notes that police officers represent to many Aboriginal people an agency of the state which ‘has victimised them through extensive racism, violence and trauma’. The policy statement called for the development of a ‘partnership’ between Aboriginal people and the police. It advocated the development of this through a number of programs including better police education on Aboriginal–police relations, and opening effective channels of communication through a ‘comprehensive and ongoing process of consultation’. A twelve-member Police Aboriginal Council was also established, its members appointed by the police service. The terms of reference for the


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Council were to provide advice on the delivery of a fair, just and equitable service to all Aboriginal people; to provide advice on the issues which contribute to the involvement of Aboriginal people in the criminal justice system, both as victims and offenders; and to provide options on how best to deal with those issues. While the Aboriginal Policy Statement could be seen as a positive and important admission of past police involvement in colonial practice, it offered little in resolving contemporary issues. There was no mention of a stronger commitment to negotiation rather than the lesser process of consultation. The key advisory board comprised police appointees who had no power independent of what might be recognised by the police commissioner. In line with new management ideologies police services are now moving towards the development of Aboriginal Strategic Plans which make explicit their guiding principles, objectives, key result areas and performance indicators. Both the Victoria and New South Wales police have recently introduced similar plans whose focus is to reduce the number of Aboriginal people entering the criminal justice system as either victims or offenders. Key result areas include police discretion, appropriate services including victim support, police education and training, improved communication and cross-cultural understanding, and safety in custody. Objectives and strategies are identified for both the corporate level and local command level. Using the New South Wales Aboriginal Strategic Plan as an example, the objectives and strategies for local area commands are discussed further below. The first objective is to increase cultural awareness among police. The strategies to achieve this include the establishment of local cultural awareness courses for police attached to patrols where there are significant numbers of Aboriginal people, the raising of issues affecting Aboriginal people through appropriate forums and the identification of interagency issues which require attention from outside the local area. Corporate level strategies relate to such issues as police recruit training in Aboriginal cultural awareness, the development of a police commissioner’s Aboriginal Conference with a view to demonstrating Aboriginal–police ‘best practice’ strategies, and so forth. The second objective is to improve communication between Aboriginal people and the police. The strategies to achieve this include regular police–Aboriginal meetings, the encouragement of Aboriginal people to participate in police consultative forums and the development of memorandums of understanding with


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Indigenous groups. The third objective is to minimise the entry of Aboriginal people into the criminal justice system. The strategies to achieve this include the development of community safety audits which include the concerns of Aboriginal people. The fourth objective is to reduce the number of Aboriginal people arrested, charged and placed in custody where alternative forms of action are available. The main strategy to meet this objective is the maximisation of the use of warnings, cautions, summonses and court attendance notices, where appropriate. A second strategy is to avoid escalating the level of intervention when conflict arises over trivial offences. In other words, individuals should be dealt with according to the reason for initial police approach, irrespective of any increased level of conflict. A further strategy is to work with other agencies to increase the conversion of warrants to community service orders (and hence avoid custody). The fifth objective is to provide an appropriate duty of care. The strategies here include notification of appropriate agencies whenever an Aboriginal person is taken into custody, the encouragement of Aboriginal people to participate in lay visitors schemes, and the reinforcement of the role of Aboriginal Community Liaison Officers in ensuring prisoner safety. The sixth objective is to strengthen victim support programs for Aboriginal people. The strategies to achieve this include providing support for Aboriginal victims and witnesses, identifying the lack of support services in specific areas and encouraging Aboriginal participation in the Volunteers on Policing program. It is clear that the development of Aboriginal strategic plans are an attempt to come to terms with some of the major problems facing Aboriginal–police relations. On one level the plans correctly identify many of the major issues, including the use of police discretion, the need for appropriate education and training, the need to reduce custody levels, and the need for the establishment of effective means of communication. However, far greater assessment needs to be made of whether and how these general objectives are being met, particularly in terms of effective policy formulation and effective change at the local level. The performance indicators so far developed are largely unsophisticated numeric indicators with little appreciation of the broader effects of policy, with nothing which might identify unintended positive or negative outcomes of particular policies; nor is there an avenue for key stakeholders to judge performance and out-


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comes.4 Even where local area police commanders are committed to improving Aboriginal–police relations we cannot assume that they have either the skills or the resources to work effectively with Aboriginal communities. Finally, it is important to recognise that an Aboriginal Strategic Plan is only one plan among many factors which influence both policy development and day-to-day policing. It is unlikely that any such plan will be seen as more important than many other corporate objectives, some of which might be directly in conflict. In Chapter 4, for instance, there was discussion of the influence of zero tolerance policing strategies in some parts of Australia. Taking New South Wales as an example, there has been a major corporate policy focus on crime reduction through increased arrests and the targeting of repeat offenders (which fall broadly under the rubric of a zero tolerance approach). The key corporate strategy for ensuring these objectives are met has been the development of Operations and Crime Reviews (OCRs) where local police commanders are regularly questioned by the police commissioner and senior officers about the rate of arrests in their particular areas. Under these circumstances, local commanders are far more likely to receive organisational kudos for increased arrest rates than for diversion of Indigenous people from arrest and custody. The two corporate objectives of crime reduction and improved Aboriginal–police relations do not necessarily conflict. However, when the strategy for crime reduction rests primarily on zero tolerance policing, it is likely that reducing Indigenous arrest and custody rates will fundamentally contradict other strategies. It will not be surprising that police will prefer to do what they traditionally define as their role and what they see as rewarded by the organisation.

MANAGEMENT STRATEGIES Police training on Indigenous issues Most police services require some training in relation to Aboriginal and Torres Strait Islander issues. In Victoria, for example, all police recruits receive three 70-minute sessions on Aboriginal issues including history, economic, political and social issues and reconciliation. Courses for sergeants and officers also have a small component on Indigenous issues (Matthews 1997, p. 22). In New South Wales the Ombudsman has noted that police education and


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training is under constant review and significant changes have been made to training for new police. The service has programs in place to provide cross-cultural awareness training for officers working in Aboriginal areas (NSW Office of the Ombudsman 1994, p. 31). One criticism of police training is that the level of complaints among Aboriginal communities concerning young police officers suggests that the education is not as effective as it needs to be (Wootten 1991a, p. 330). The Royal Commission into Aboriginal Deaths in Custody suggested there was merit in the idea that new recruits who are posted to areas with Aboriginal communities should spend some time getting to know the community before taking on normal policing duties. Since the Royal Commission, variations on this idea have been attempted in New South Wales and Queensland. It should also be noted that training new recruits in cultural awareness needs to be supplemented with training for serving officers, most of whom will not have had the benefit of improvements in recruit training. Some existing officers still hold unacceptable and stereotypical views of minority groups. According to the Ombudsman, the greatest challenge to the police service is to change the views of these established officers, particularly because they remain the role models for new officers (NSW Office of the Ombudsman 1995, p. v). Police recruitment strategies for Indigenous police officers Most police services have some type of strategy to encourage the employment of Aboriginal people within the police service. This can occur through recruitment strategies for fully sworn police officers, or in some jurisdictions may involve recruitment of Indigenous people as police aides or wardens. Many reports have recommended increased employment of Aboriginal people as police officers, including the Australian Law Reform Commission and the National Inquiry into Racist Violence (ALRC 1986; HREOC 1991). Some police services have introduced bridging programs to assist Aboriginal people in reaching the required educational standards for entry into the service. Nationally, there appears to have been some increase in the number of Aboriginal police officers, although the actual number is uncertain. New South Wales claims to have over 150 Aboriginal police officers (NSW Office of the Ombudsman 1995).


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The reaction of Aboriginal communities to Aboriginal police officers has been mixed. The Royal Commission noted that ‘such appointments will achieve little if the Aboriginal police . . . absorb the general police culture and identify with it against Aboriginals. The hope must be that their presence will broaden and help to change the police culture’ (Wootten 1991a, p. 329). Sadly, the experiences of Indigenous police officers referred to earlier show the extent to which direct racism within the police culture has led to many resigning from their positions. Police policy advisory units It was a recommendation of the Royal Commission into Aboriginal Deaths in Custody that police services establish specialist units for policy and program development for Indigenous people, and most services now have some such unit or position. For example, in Victoria the Police Aboriginal Advisory Unit is responsible for policy development and the provision of training for police on Aboriginal issues. It is staffed by four members, two of whom are Aboriginal. However, in some jurisdictions such units have a variety of functions relating to both Indigenous people and people from non-English-speaking backgrounds, and to community relations in general (for example, the Northern Territory and Tasmania). A further concern is the extent to which these ‘units’ have the authority and budgets to enable them to develop and change policy effectively. In New South Wales there is an Aboriginal Client Services Consultant who has the role of developing policy relating to Aboriginal people throughout the State, as well as involvement with education in the police academy and with local area police training. The consultant is expected to ensure that special needs are identified and taken into account in police service delivery to Aboriginal people and communities and that the quality of service is improved. The consultant is also expected to provide expert advice, advocate Aboriginal issues within the police service, represent the police on issues concerning Aborigines, and ensure policies and programs are evaluated for their effectiveness, efficiency and appropriateness to the needs of Aboriginal people and police (NSW Office of the Ombudsman 1994, p. 39). With this list of extensive and sometimes conflicting duties, it is not surprising that a critical issue has been the level of resources and support for the position within the organisation.


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ABORIGINAL COMMUNITY POLICE AND COMMUNITY LIAISON OFFICERS Leaving aside Indigenous people who become fully sworn mainstream police officers, there are basically two models which are prevalent in the use of Indigenous people in the policing function. These involve either Aboriginal Community Liaison Officers or Aboriginal Community Police (or wardens). Aboriginal Community Liaison Officers are Aboriginal people who are not police officers but who are employed by police departments and fulfil a range of functions associated with Aboriginal–police relations. Aboriginal Community Police have limited powers of law enforcement and are also either employed by and/or under the direct supervision of the state police. In the following discussion New South Wales provides an example of the use of Aboriginal Community Liaison Officers, while Queensland provides probably the most extensive example of the use of Aboriginal Community Police. Aboriginal Community Liaison Officers In New South Wales the system of Aboriginal Community Liaison Officers (ACLOs) began with the appointment of four Aboriginal people as liaison officers in the north-west of New South Wales in 1986.5 By the late 1980s the number had grown to sixteen, and by the end of the 1990s there were over 50 ACLOs. While there has been increasing commitment by police to employing ACLOs, the program cannot be categorised as being either a success or failure. The results have been mixed, much depending on utilisation at the local level. While generally supporting the use of ACLOs, the Royal Commission into Aboriginal Deaths in Custody, the National Inquiry into Racist Violence and the New South Wales Ombudsman have all been critical of particular features of the system. The National Inquiry into Racist Violence called for a departmental review of the role, status and authority of ALCOs. The Inquiry found that liaison officers had their advice ignored and were not informed of major policing operations involving Aboriginal communities such as Redfern. Indeed, ACLOs found the situation in Redfern during the early 1990s so difficult that there were continual resignations in protest. The Inquiry called for careful evaluation of the role of ACLOs, particularly where major police operations undermine the positive functions which such


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positions could fulfil. ‘Rather than serving to facilitate any improvement in Aboriginal/police relations, the undermining of the functions of the liaison officers serves to discredit the authority of such officers and to create the impression that these officers have little influence over policing policies in Aboriginal communities’ (Cunneen 1990a, pp. 33–4). In evidence to the National Inquiry into Racist Violence, many Aboriginal communities in New South Wales have complained about specific deficiencies with the system, including the recruitment methods used by police, the lack of training, the location of the officers within police stations, the lack of a clear (or in some cases any) statement of duties, and the lack of accountability to the Aboriginal communities with which the officers are expected to liaise. In addition, the employment conditions of ACLOs as temporary Ministerial appointments outside normal public service conditions were clearly unacceptable. The lack of a career structure or grading might suggest to other police that ACLO functions and their significance to overall police policies and programs were not important. Some of these issues have now been remedied in terms of appointment and statements of duties. Yet it is important to consider the ongoing problems which are likely to arise because of the contradictory positions in which these individuals are inevitably placed. The Royal Commission into Aboriginal Deaths in Custody found that some ACLOs were trusted by the Aboriginal community and seen as doing valuable work. Others were not. A number of Aboriginal communities complained to the Royal Commission of their lack of involvement in the selection of the officer for their community. The Royal Commission was of the view that if an ACLO was to carry out his or her work successfully then they must have the confidence of the community. Involvement of the community in the selection of ACLOs is essential (Wootten 1991a, pp. 317–18). The issue of responsibility goes to the heart of the problem. Who do community liaison officers represent and whose interests do they act upon? The Royal Commission into Aboriginal Deaths in Custody noted that defining the role of ACLOs was a central factor in their successful utilisation. According to the Commission, police need to recognise the special role of liaison officers and not involve them in law enforcement duties or routine police tasks. In addition, while liaison officers can be useful in defusing situations of potential conflict between Aboriginal people and


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police, this should not be their only role. Their work should be directed to improving understanding and cooperation between Aboriginal people and police. The extent to which there should be centralised direction of the functions of ACLOs is, of course, open to differing interpretations. ATSIC, in a submission to the Ombudsman on the issue, noted that ACLOs are ‘not subject to the expected degree of central coordination but are left to the discretion of local Patrol Commanders . . . this suggests that these programs may not have a sufficiently high profile in overall policing strategies’ (cited in NSW Office of the Ombudsman 1995, p. 65). The Ombudsman noted that policy and practices in relation to ACLOs varied from patrol to patrol, the diversity reflecting local autonomy and flexibility at the patrol level. This diversity was, however, seen as an improvement on the former policy when ACLOs were directed from headquarters and considered ‘a scarce resource to be used as a two way conduit between the Police Service, local Aboriginal communities and Aboriginal organisations’ (NSW Office of the Ombudsman 1994, p. 37). ACLOs may be used in functions as diverse as a de facto special constable, assisting police officers in the performance of their duties, or as a driver for the bus to convey intoxicated persons to their homes or to a proclaimed place. While there must be some operational and policy reservations about the potential consequences of such diverse practices . . . it is not an issue for critical comment here. Essentially, each duty observed, represented an intelligent use of resources to satisfy local needs. The residual concern was whether, in the absence of any HQ policy or coordination, all relevant administrative issues had been appropriately addressed (NSW Office of the Ombudsman 1994, p. 37).

While varied functions may be acceptable in some areas, the basic issue of whether ACLOs are responsible to their community or the police remains. Varied functions may be acceptable where there is meaningful Aboriginal community involvement in prioritising the nature of the work which ACLOs undertake. It should be noted that the criticisms of the New South Wales scheme in relation to training, employment conditions, authority and status are not particular to that state but have also been raised, for example, in relation to Aboriginal liaison officers and community police in Queensland in reports by the Royal Commission into Aboriginal Deaths in Custody and the Human Rights


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and Equal Opportunity Commission, and more recently by the Commonwealth House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (1994). The Standing Committee found evidence of entrenched racism among police against Aboriginal community liaison officers and their support units. In Queensland it appeared that senior police were of the view that these officers were there to provide intelligence for police about Indigenous people. In New South Wales the Standing Committee found that a number of liaison officers resigned because of racism in the police service (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 1994, pp. 264–6, 285). Aboriginal Community Police Queensland has a long history of the use of Aboriginal and Torres Strait Islander community police on the former reserves on the Australian mainland and the islands of the Torres Strait. In general the community police exercise powers conferred on them through legislation which enables community councils to pass by-laws for the maintenance of peace and good order.6 Community police exercise their jurisdiction within the local by-laws and ‘exercise their powers subject to the direction and control of the member of the State police present’ (section 33(2), Local Government (Aboriginal Lands) Act 1978). Problems associated with the role and functions of the community police in Queensland have been identified in reports by the Royal Commission into Aboriginal Deaths in Custody, recent coronial inquiries into Indigenous deaths in custody, and the Human Rights and Equal Opportunity Commission. The Royal Commission specifically commented on some of the issues related to community police when it investigated a number of deaths in Queensland, in particular the death of Alistair Riversleigh at Doomadgee (Wyvill 1989). First, Aboriginal Community Police can lawfully exercise only very limited powers of arrest. They do not have the same powers as the state police in the same community. Second, the community police are under the direct supervision of the state police, rather than the elected Aboriginal council. On a day-to-day basis the fundamental organisation of policing work is conducted by the state police, with the community police basically expected to fall into whatever arrangements and roles that are prescribed.


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Although the community police were under the direct supervision of the state police, the super vision itself has been consistently found to be inadequate. According to the coroner investigating the death in custody of Craig Sandy on Mornington Island, the supervision of community police by state police was ‘casual and improper’.7 It has also been acknowledged that there has been widespread improper use of community police, who have been given a substantial range of responsibilities (including being placed in charge of watch-houses) without proper training. It is also worth considering the actual outcomes of the use of community police in the context of grossly inadequate training. Craig Sandy died in custody on Mornington Island after the Royal Commission into Aboriginal Deaths in Custody had identified the problem with Aboriginal Community Police in other deaths in custody (in particular Alistair Riversleigh). In the Sandy case, a person with serious head injuries was detained by the community police and put in a watch-house. His injuries were not diagnosed until the following day. He died shortly afterwards. The coroner found that the death could have been avoided had the community police received adequate supervision and adequate training. Employment conditions have also been a problem for Aboriginal Community Police. They are poorly remunerated and, until recently, lacked a proper award system. They were employed by the local Aboriginal council, sometimes on work for the dole schemes (CDEP), and lacked security of employment. An interesting feature of the system is that the employment of Aboriginal Community Police is primarily paid for by the local Aboriginal council—Aboriginal communities are directly paying for a significant part of their own police in a way which is fundamentally different from the general community. The lack of community control over community police is even more disturbing in this context. A central issue to emerge in relation to both Aboriginal Community Liaison Officers and Aboriginal Community Police is the question of negotiation and control. A criticism of both systems is the lack of community control over the process or conditions of involvement. In Queensland the community is paying for its own community police but is not establishing the direction of policing. In New South Wales ACLOs are directed by local area commanders who may or may not establish adequate mechanisms for determining community priorities. A major question which needs to be asked is whether either of these programs represents any model for negotiated self-determination. Some might argue that they do


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because Indigenous people are engaged in policing their own communities. Yet it is clear that the key decisions remain firmly within the hands of non-Indigenous institutions and decisionmakers. This is not to say that Indigenous people working in the area of community policing are necessarily dupes of a colonial system. They often play an important role in mediating the worst aspects of the criminal justice system and implement their own priorities and modes of policing, but they do so within a context where the broader systems of power are outside their control.

THE DEMAND FOR GREATER AUTONOMY: ABORIGINAL JUSTICE AGREEMENTS Two related national meetings in 1997 reflect the greater demand by Indigenous people for negotiated outcomes in relation to policing and justice issues. The first was in February 1997 in Canberra, when Indigenous people from Aboriginal Justice Advisory Committees throughout Australia, ATSIC and other key Indigenous organisations including the Aboriginal Legal Services met as the Indigenous Summit to discuss the outcomes of the Royal Commission into Aboriginal Deaths in Custody and the continuing issue of deaths in custody and high incarceration rates. The Indigenous Summit recommended the development of Justice Agreements for each state and territory as a way of improving the delivery of justice programs. It was recommended that Commonwealth, state and territory governments develop bilateral agreements on justice issues, and negotiate with Aboriginal Justice Advisory Committees and other relevant Aboriginal organisations in the development of the agreements. It was also recommended that the framework provided by the National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal and Torres Strait Islander People be utilised in the development of the Justice Agreements, particularly given that this was a Council of Australian Governments endorsed process, one that had established precedents in health and education during the early part of the 1990s. The National Commitment had placed a strong emphasis on developing a framework which respected Indigenous selfdetermination and it was seen as appropriate that this emphasis be included in the development of Justice Agreements. The guiding principles for Justice Agreements as developed at the Indigenous Summit included empowerment, self-determination


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and self-management by Aboriginal and Torres Strait Islander people. The need to negotiate with and maximise participation by Indigenous people through their representative bodies in the formulation of justice policies which affect them was held to be a central requirement (Ministerial Summit 1997, p. 221). The Indigenous Summit noted best practice examples of Aboriginal community justice initiatives8 and established three key ‘principles’ for the development of Justice Agreements in regard to policing issues. These were that the full implementation of the recommendations from the Royal Commission into Aboriginal Deaths in Custody in relation to police and Aboriginal community relations would result in a significant decline in Aboriginal contact with the criminal justice system; that Aboriginal communities had made significant efforts through community justice programs to address the level of contact between Aboriginal people and the police; and that locally devised community justice strategies were generally a voluntary effort which required greater government commitment for their development and expansion (Ministerial Summit 1997, p. 228). The second major meeting was the Ministerial Summit on Indigenous Deaths in Custody held in Canberra in July 1997. At this summit some twenty Commonwealth, state and territory ministers met with Indigenous representatives from ATSIC, the Aboriginal and Torres Strait Islander Social Justice Commission and Aboriginal Justice Advisory Committees. The Summit resolved to develop multi-lateral agreements between governments and Indigenous peoples relating to justice issues. The Northern Territory was the only government which refused to sign the Outcomes Statement from the meeting. There was some Indigenous criticism of the statement for being too open-ended and lacking either a time frame or process of accountability (Dodson 1997b, p. 153). There was also little in the statement which referred to the importance of self-determination in negotiating justice agreements. The importance of the meeting itself should not be glossed over, however. The fact that all Commonwealth, State and Territory ministers agreed to meet with Indigenous representatives is itself indicative of a de facto recognition of Indigenous rights to greater self-determination and autonomy. It is a recognition in practice that Indigenous people are a separate political entity not reducible to the mainstream polity. An outcome of the Ministerial Summit in 1997 was that ‘strategic plans’ and ‘multi-lateral agreements’ would be devel-


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oped between Australian governments and Indigenous people concerning justice issues. Indigenous organisations generally refer to these as Aboriginal Justice Agreements, thus reflecting the requirement that the agreement be a negotiated instrument, rather than simply a managerial tool for government departments as implied in the notion of a ‘strategic plan’. It was resolved at the Ministerial Summit that these agreements would address social, economic and cultural issues; justice issues; customary law; law reform and government funding levels for programs. The agreements would include targets for reducing the rate of Indigenous over-representation in the criminal justice system; planning mechanisms; methods of service delivery; and monitoring and evaluation (Dodson 1997b, p. 153). Much of the language of self-determination and autonomy which had characterised the recommendations from the Indigenous Summit was missing from the Outcomes Statement signed by governments. The danger is that in the process of implementation the Justice Agreements will simply become ‘strategic plans’ for government to improve their service delivery. The need for negotiation with Indigenous communities will be replaced by consultation with ‘key stakeholders’. There are already signs that this is occurring in Victoria (Matthews 1997). Conclusion: commitment or failure? There is no doubt that there has been some activity by police services aimed at improving Aboriginal–police relations. Yet at the same time there has been considerable criticism of police (among other government instrumentalities) for their failure to fully implement the recommendations from the Royal Commission into Aboriginal Deaths in Custody: during the 1990s there were three independent national reviews of government performance in implementing the recommendations from the Royal Commission (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, 1994; Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner 1996; Cunneen and McDonald 1997a). In addition, there have been a number of reports prepared by Aboriginal Legal Services and Aboriginal Justice Advisory Committees covering specific States and Territories. All the national reviews found that the recommendations relating to police practices and procedures, particularly the use


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of arrest, could be implemented with far greater commitment and could lead to reduced levels of police custody. Indeed, some of these recommendations currently have no more than government lip-service paid to them. The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (1994) found that Aboriginal people were still being arrested for minor offences (such as vagrancy in Queensland). Both Cunneen and McDonald (1997a) and the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner (1996) found that throughout Australia, Indigenous people were still being arrested, placed in police custody and, in some cases, imprisoned on the basis of behaviour that the police found offensive and which had been precipitated by police actions. The use of arrest as a last resort was one of the keys to achieving the national goals of reducing over-representation in police custody. According to the reviews, the continuing high level of arrest of Aboriginal people, rather than dealing with problems by other means, demonstrated the lack of commitment to planning and negotiating with Indigenous communities and to avoiding automatic criminal justice system responses to perceived problems. Cunneen and McDonald (1997a, p. 8) concluded that there needed to be greater police commitment to improvements in the areas of training, discipline and policy development. Widespread complaints about violent, racist and inappropriate police behaviour remained an issue. There needed to be greater commitment to the development of effective community policing strategies which seriously negotiated with Aboriginal communities about suitable processes and outcomes. There also needed to be a greater commitment to funding for the development and support of locally devised community policing strategies including community police, night patrol and cell visitor programs. Perhaps a stark reminder of the Realpolitik of reform was the illuminating reaction to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs’ report Justice Under Scrutiny. The House of Representatives Standing Committee (1994, p. 266) found that institutionalised racism existed in the Queensland Police Service and was entrenched at senior levels. The then President of the Queensland Police Union, John O’Gorman, said the parliamentary report was ‘absolute garbage’ and should be ‘thrown out with the rubbish’. The then Queensland Police Commissioner, Jim O’Sullivan, totally rejected the finding of entrenched racism, which he thought was an


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‘outrageous suggestion’. The then Minister for Police, Paul Braddy, thought the report was ‘unfair, inaccurate and wrong’.9 In other words none of those likely to be in a position to push for reform—the Minister, the Commissioner or the Union President—accepted that racism might be an issue. The responses of the Queensland authorities are reminiscent of earlier reactions of considerable hostility against the work of the Royal Commission into Aboriginal Deaths in Custody. In Western Australia there were two legal challenges to the terms of reference and validity of appointment of Commissioners Lew Wyvill and Elliot Johnston. The matters were brought by the police and prison officers’ unions and funded by the Western Australian Government. The Federal Court affirmed the validity of the appointments. The New South Wales Government of the time challenged the jurisdiction of the Commission to hear matters relating to underlying issues, in particular Aboriginal–police relations.10 Aboriginal Policy Statements and Strategic Plans are increasingly being used as a way of acknowledging the past role of police in the colonial process, as well as the effects which colonial policies have had on Indigenous peoples, yet not even this process has proceeded uniformly. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families acknowledged the importance of acknowledgment and apology by government departments in the role of forcibly removing Indigenous children from their families (NISATSIC 1997, p. 284)—indeed, specifically recommending that police acknowledge their role in the process by offering an apology to the Stolen Generations and by participating in commemorations (NISATSIC 1997, p. 287)—but the majority of Australian police services have so far ignored the recommendation. In conclusion, perhaps the issues which face police reform can be summarised into two areas: the need to ensure effective management review and the need to reconsider community policing in a way which goes beyond mere indigenisation of existing policies. Many of the issues which fall within effective management structures have been identified in previous national and state and territory reports, for example, the ongoing concern with ad hoc policy-making in Indigenous affairs. The case of the development of the ACLO program in New South Wales is illustrative. The Ombudsman noted that the program had all the hallmarks of an ad hoc approach:


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Having established that patrol commanders found ACLOs useful, the program was expanded to some 38 positions but the statement of duties for ACLOs was not finalised until recently and this statement still has only a passing resemblance to the local practice in some patrols. Likewise, the conditions of employment for ACLOs have been defined only recently. There was no evidence of any attempt to establish objective guidelines about the ratio of ACLOs to the Aboriginal population in patrols . . . (NSW Office of the Ombudsman 1994, p. 40).

Associated issues are the lack of serious policy development and monitoring processes. Without adequate central policy, police at the local patrol level either completely ignore developing Aboriginal–police relations, or do what they can with inadequate procedures, programs and support. Lack of central direction means that policy is left to the discretion of local patrol commanders, and the programs retain a low profile without serious credibility among either senior police or the rank and file. There is also a clear need for more coherent monitoring of programs relating to Indigenous people. Programs should undergo periodic review, evaluation and modification. Detailed analysis and performance indicators are a start, but these should be considered within a broader context of Indigenous input into evaluative strategies. In both this chapter and Chapter 8, the concept of ‘community’ has been called into question. The application of the term ‘community’ can delegitimise and dehistoricise political and social conflict. Indigenous politics require police to re-think the meaning of community-based policing if it is to have an effective resonance in Indigenous affairs. At present community-based policing policies fit closely with the dominant ideological perception of a singular relationship between police and ‘the community’. As Findlay and Hogg (1988, pp. 46–7) note, the ‘abiding myth’ that the police and the community are not separate but one is still regularly evoked. The police as a bureaucratic organisation with specific functions, legal powers (in particular the right to use force) and technical resources is clearly separate from other forms of social organisation. Indeed, Cohen (1985) argues that ‘the rhetorical quest for community . . . has come to dominate Western crime-control discourse in the last few decades’ (1985, p. 116) and that the emphasis on ‘community-based’ programs can be seen to be an extension of state power. Such policies are ‘sponsored, financed, rationalised, staffed and evaluated by state-employed personnel. It


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is unlikely that [the same forces] which destroyed the traditional community—bureaucracy, professionalization, centralization, rationalization—can now be used to reverse the process’ (Cohen 1985, p. 123). For these reasons Cohen argues that community-based strategies represent an increase in public regulation, rather than the reverse. While such a process may not be as linear or as allencompassing as Cohen conceived of it in the mid-1980s, his critique still demands our attention. When the Victorian or New South Wales police develop Aboriginal Strategic Plans which discuss the formation of a ‘partnership’ between police and Aboriginal people, one must question the power relations of such a partnership and to whose advantage it is designed. Above all, one needs to consider how notions of communitybased policing can be brought into line with Aboriginal aspirations for self-determination. From a police perspective community policing is beneficial in improving Aboriginal–police relations; in other words, it may make the task of policing easier. Aboriginal aspirations for self-determination, however, cast a very different light on what community policing could mean. From an Aboriginal perspective, the major issue may well be how to generate and maintain greater control over policing. One of the greatest dangers is that community policing and the development of Indigenous policies in police services may simply dissolve into a form of indigenisation. Nations such as Canada, New Zealand and Australia have moved to respond to the political demands of Indigenous people by indigenising existing justice systems. ‘Indigenisation’ refers to the process of involving Indigenous people and organisations in the delivery of existing or modified services and programs. Havemann (1988) developed the notion of the ‘indigenisation of social control’ in the Canadian context where he argued that the recruitment of Indigenous people to enforce the laws of the colonial state masks the coercive nature of the state, relies essentially on a model of integration into colonial legal relations, and is likely to impede the processes of self-determination (1988, pp. 71–100). Using the development of family group conferences as an example, New Zealand writer Juan Tauri (1998) has argued that indigenisation of the criminal justice system is not the same as self-determination. Similarly, the schemes using Aboriginal Community Liaison Officers and Aboriginal Community Police, as they currently exist, reflect processes of indigenisation rather than self-determination.


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Ultimately, indigenisation reflects the power relations of neocolonialism. It is a form of control which essentially relies on Indigenous people carrying out particular functions at the interpersonal edge of policing where the priorities and goals of that system of control are being determined largely outside of Indigenous political mechanisms. The ‘problem’ of Indigenous people for police is dealt with by their incorporation into modified existing structures. The problem of state policing for Indigenous people is left unresolved. This chapter began by stating that there were no simple magic formulas by which police services might reform themselves in their interactions with Indigenous people. While this is the case, there are principles and values which can underpin the development of policy. The moral and ethical values which might underpin policy development in Indigenous affairs can be broadly conceptualised as the enhancement of human rights. The content of those human rights is dealt with in Chapter 10. For the present it is worth reflecting that serious commitment to principles such as selfdetermination and non-discrimination would involve an important re-thinking of basic police policies around strategies of community policing, problem-solving, crime reduction and victim support.


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10 Policing and postcolonial self-determination POLICING AND POSTCOLONIAL SELF-DETERMINATION

A number of themes have dominated the struggle of Indigenous people in Australia. These include the struggle for land, the struggle for recognition of citizenship rights and the struggle for recognition of the collective right of Indigenous people to selfdetermination. In particular the fight for citizenship rights and the fight for self-determination have fundamental implications for the question of policing. How do we ensure equality of treatment? That the rights of citizens are respected? That Indigenous people are not treated less favourably than non-Indigenous people? How do we ensure that the collective right to self-determination is recognised and developed? The struggle for land rights is also connected to policing, although perhaps less directly. The recognition of pre-existing rights to land through native title opens up the related issues of the exercise of sovereignty in matters concerned with law and justice. The argument presented thus far, and developed further in this chapter, is that neither citizenship rights nor the collective right of self-determination have been respected by Australian governments. How then do we characterise the nature of contemporary relations between Indigenous people in Australia and the dominant society? The argument which I have developed here is that criminal justice still operates in Australia within a political framework that can accurately be described as neocolonial. The criminal justice system maintains a power relationship between coloniser and colonised which has existed since the beginning of European invasion, a power relationship structured in dominance by the colonisers. The possibility of developing legal pluralism was effectively jettisoned in 1836 with the Murrell case, which contemporary courts have held as binding; the possibility of recognising a form of residual sovereignty along the lines drawn by United States Supreme Court decisions relating to ‘domestic dependent

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nations’ has been consistently denied by Australian courts. As a result, any ‘right’ to self-determination is seen as a matter of administrative and political discretion by non-Indigenous governments.1 This is not to deny that the administration of criminal justice in Australia is a diverse and complex system including a range of seemingly contradictory trajectories and covering quite different jurisdictions, bureaucratic organisations and policy directions. Overall, however, I have argued here that the administration of criminal justice is captured within a politics of neocolonialism. In particular, the process of criminalisation reproduces inequality based on a division between coloniser and colonised. In terms of the historical trajectory of invasion, war, dispossession and control, the criminal justice system reinforces power relations within Australia which exclude Indigenous people from political, social and economic participation. Indigenous people are reproduced as ‘criminals’. The accepted legal position, at least from the mid1830s, was that Indigenous resistance to colonisation were acts of criminality. The protection period saw the ‘special status’ definition of Indigenous people enable widespread control. In the later part of the twentieth century, criminalisation enabled a network of power to be applied to Indigenous people, largely on the basis of ‘race’, in a way not applied to others in Australian society. In contemporary Australia, the network of power extends through the juvenile courts, the police, the social workers and probation and parole officers, the courts and the prisons. It includes both those immediately captured within these institutional arrangements and their families, kin and communities. A major political impact of the operation of criminal justice processes is that it removes and annihilates the political status of Aboriginal and Torres Strait Islander people as Indigenous people. In this sense, the political status of ‘first peoples’ is denied along with the validity of Indigenous methods of governance and social control. In place of their inherent political status, Indigenous people are both racialised and criminalised. ‘Race’ becomes conflated with criminality, and the essentially political rights of Indigenous people to control their own lives as legal subjects disappears. Once identified as criminals, a range of practices come into play, including isolation, detention, the loss of civil rights, and the cultural, social and economic disruption of Aboriginal communities. Thus, the administration of criminal justice is embedded in practices which maintain the colonised in an


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inferior position. The reason one might refer to this as ‘neocolonial’ is because the practices themselves rely on discourses which appeal to equality, unlike earlier Australian colonial practices which unselfconsciously operated within a discourse of the inferiority of the ‘native’. One response to the claim that criminal justice administration functions in a neocolonial context is to assert that, in general, government policy advocates self-determination for Indigenous people, and is thus committed to a postcolonial framework. Certainly, the dominant governmental discourse speaks to notions of self-determination, self-management and postcolonialism, despite the Howard federal government’s recoil from using the notion of self-determination. Governments now speak to apparently postcolonial political forms like ATSIC as a body that has Indigenous representation, determines some policy but administers such policy on the basis of government grant allocations. However, as this book has shown, the formal practice of self-determination remains within the definitional framework permitted by government rather than determined by Indigenous organisations. Government practice through policing is still fundamentally based on assimilationist principles. Although there are the occasional specific and localised programs, government claims to recognise self-determination in policing and law are largely rhetorical. Aboriginal and Torres Strait Islander people simply do not have the opportunity of determining appropriate methods of dealing with issues defined as ‘criminal’ within the dominant legal discourse. Indigenous governance and social control mechanisms exist ‘officially’ only to the extent that the Anglo-Australian legal system permits. Notions of neocolonialism and postcolonialism need not be seen as mutually exclusive. Stuart Hall (1996) argues that despite the ‘problematic temporality’ of postcolonialism, the concept does indicate an incontrovertible shift in the relations of earlier colonial societies. At least Hall is of the view, however, that the term does not mean that ‘the ‘‘after effects’’ of colonial rule have somehow been suspended’ (Hall 1996, p. 254). In this sense specific ‘neo’ and ‘post’ colonial relations can exist simultaneously. Through much of the twentieth century Indigenous people were denied citizenship rights. The legal category of ‘aboriginal native’ was central to the institutional definition and development of Australian citizenship. To be an Indigenous person was to be a


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member of an exclusionary category removed from Australian citizenship on the basis of ‘race’. As Chesterman and Galligan (1997, p. 84) note, the long exclusion of Indigenous people was ‘not the product of a rigid constitution, conceived and endorsed by nineteenth century colonial racists, [it] was implemented and routinely administered by Australian Governments and bureaucracy until well into the second half of the twentieth century’. The exclusion of Indigenous people ‘went to the heart of the very idea of those qualities thought by the administration to make up an Australian citizen . . . ‘‘aboriginal native’’ . . . was the key boundary marker to Australian citizenship’ (Chesterman and Galligan 1997, p. 120). The systematic exclusion of Indigenous people from the nation is a hallmark of colonial regimes, yet the evidence presented in this book has demonstrated that formal citizenship and formal equality in the last third of the twentieth century has not seen the development of substantive equality before the law nor a respect for human rights. The concept of neocolonialism recognises the fact that the relationship between Indigenous people and the dominant society is still manifestly colonial, although the modality of colonial power may have changed with the formal emphasis on equality and citizenship. Thus for Aboriginal people the fact of material dispossession continues, even though the High Court decision in Mabo (No 2) recognised prior indigenous interest in land through common law ‘native title’. The High Court decision at the moment of recognising ‘native title’ simultaneously ensured that the dispossession of the vast majority of Aboriginal people was complete because their ‘native title’ had been legitimately extinguished by government. The Mabo (No 2) decision overturned the principle that Australia was terra nullius at the time of colonisation, but at the same time reconfirmed that Australian sovereignty was beyond domestic legal challenge. Since the Mabo (No 2) decision, the courts have maintained the position that sovereignty and criminal jurisdiction are not matters open to serious questioning.2 Similarly, the very limited recognition of Aboriginal customary law by the courts has occurred firmly within the parameters of the Anglo-Australian judicial system. While Mabo opened the door in relation to recognising pre-existing rights to land, the High Court also attempted to close the door on any future recognition of pre-existing rights to self-determination and selfgovernment.


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CITIZENSHIP, HUMAN RIGHTS AND THE CRIMINAL JUSTICE SYSTEM A central theme running through much of this book, and dealt with particularly in Chapter 5, has been the issue of the abuse of human rights in Australia. Human rights abuses arise specifically out of the operation of the criminal justice system. It has become increasingly the case that these abuses are noted in the international arena. Amnesty International’s 1993 report on Australia found that systemic problems associated with disproportionate levels of incarceration of Indigenous people may ‘violate their right ‘‘to be treated with humanity and with respect for their inherent dignity of the human person’’, as set out in Article 10 of the International Covenant on Civil and Political Rights’ (Amnesty International 1993, p. 1). The annual US State Department’s Country Reports on Human Rights Practices have also been critical of Australia on a regular basis since the late 1980s. Inevitably these criticisms have centred on Australia’s record of treatment of Indigenous people, particularly with regard to the operation of the criminal justice system. The report for 1996 noted that Aboriginal people continue to suffer ‘significantly higher rates of imprisonment . . . and general discrimination which contribute to an overwhelming feeling of disenfranchisement’.3 The 1998 report noted the following: Indigenous groups charge that police harassment of Indigenous people including juveniles is pervasive and that racial discrimination among police and prison custodians persists. A human rights delegation that visited in 1996 alleged a pattern of mistreatment and arbitrary arrests occurring against a backdrop of systematic discrimination (US Department of State 1999, p. 5).

Australia has also increasingly been called to account before United Nations committees over the failure to adhere to international human rights conventions to which the country is a party. In 1997, the United Nations Committee on the Rights of the Child expressed its concern over the disproportionately high proportion of Indigenous young people in the juvenile justice system. The Committee was responding to the Australian Government’s first report under the requirements of CROC (ATSIC 1999, p. 100). In August 1998 the United Nations Committee on the Elimination of Racial Discrimination used its urgent action/early warning procedure to request information from the Australian Government on


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amendments to the Commonwealth Native Title Act 1993 and the proposal not to replace the Aboriginal and Torres Strait Islander Social Justice Commissioner. A detailed submission to the Committee by ATSIC (1999) raised a number of issues beyond native title legislation. In particular, ATSIC highlighted the ongoing overrepresentation of Indigenous people in the criminal justice system and the fact that it was linked to continued social and economic marginalisation (ATSIC 1999, pp. 10–11). The Committee on the Elimination of Racial Discrimination was dissatisfied with the Australian Government’s response and the matters remain on the Committee’s agenda (Committee on the Elimination of Racial Discrimination 1999). In general terms, the types of human rights abuses referred to above derive from recognised rights of citizens embodied in conventions such as the ICCPR, CERD and CROC. They are not rights related to the collective status of Indigenous peoples (such as self-determination, which is dealt with in more detail below), but are individual rights providing for the protection of all citizens, including minority groups. In particular the intersection of civil rights and potential abuses by criminal justice agencies are covered by articles 7 to 16 of the ICCPR and article 5 of CERD. In particular, CERD places a positive obligation on member states to pursue policies which eliminate racial discrimination and guarantee equality before the law. The specific relevance of various articles of the above conventions to Indigenous people who have been subject to abuses in the criminal justice system have been discussed in previous chapters and are also dealt with more extensively elsewhere (Office of the Aboriginal and Torres Strait Islander Social Justice Commission 1996, pp. 313–20; Cunneen and McDonald 1997b; Dodson 1998, pp. 23–9; Pritchard and Heindow-Dolman 1998). Human rights abuses, specifically by police and more generally within the criminal justice system, are directly connected to the struggle of Indigenous people for citizenship rights. Systematic human rights violations deny the right of groups of citizens to participate freely in society. Part of the struggle in Australia is to ensure adequate domestic compliance with the international agreements to which the nation is already a party. It has been argued that Australia through much of the postwar period remained outside the developing international jurisprudence on human rights, particularly in the absence of the enactment of a Bill of Rights (Kirby 1994, p. 268). Where Australia has enacted


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international human rights standards in domestic law, the mechanisms for ensuring compliance have tended to be weak (Pritchard 1998a, pp. 4–7). This has led to what has been described as Australia’s split personality: in international forums Australia has been highly regarded for its support on human rights issues, but at home domest ic implement at ion of human rights agreements is generally ‘half-hearted and inadequate’ (Charlesworth 1995, p. 130). Since the 1990s there has been a change in the potential impact of international human rights law on Australia’s domestic situation. In 1991 Australia acceded to the First Optional Protocol of the ICCPR which allows individuals to take complaints (communications) to the United Nations Human Rights Committee under certain conditions. The Toonen case was a successful example of the use of Optional Protocol in a matter relating to sexual discrimination and criminalisation of gays in Tasmania. The Human Rights Committee found that the Tasmanian legislation violated sections of the ICCPR. In response the Australian Commonwealth introduced overriding legislation, the Human Rights (Sexual Conduct) Act 1994. Another successful example of the use of the Optional Protocol was A v Australia—a matter involving a Cambodian refugee. The Human Rights Committee found that Australia breached sections of the ICCPR with its legislative provisions for detention of illegal immigrants. In the case of A, he was detained for five years without the opportunity to bring legal proceedings to challenge his release. Unlike the Toonen case, the federal government has not significantly addressed the concerns which were raised in this matter (Crock 1998, pp. 30–2). Most of the cases where the Optional Protocol under the ICCPR has been used successfully have involved violations relating to arbitrary detention, torture, cruel, inhuman and degrading treatment, and unfair trials. Some of these cases involved Indigenous peoples from outside Australia (Evatt 1998, p. 87). Other articles of the ICCPR which are likely to be relevant to Indigenous people include Article 26, prohibiting discrimination on the basis of race and providing a guarantee of equality before the law and equal protection of the law. Article 27 provides for the right to preservation of one’s culture. In particular Article 27 is interpreted by the Committee as ‘being a counter to integrationist and assimilationist policies’ and imposes obligations on states to take positive measures ‘to protect the language, religious and cultural rights of members of minority groups’ (Evatt 1998, p. 113). Complaints


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under this section have been used with some success by Indigenous peoples in Canada, Sweden and Finland (Pritchard and HeindowDolman 1998, pp. 483–9). Australian High Court decisions also have noted the influence of international law on the development of domestic law and its importance in relation to domestic decision-making (Chan and Cunneen 1998; Kirby 1995, p. 83; Pritchard 1998a, pp. 4–7). In Mabo (No 2) Justice Brennan (with whom Mason CJ and McHugh J agreed) stated that the opening up of international remedies to individuals pursuant to the First Optional Protocol . . . brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights (Mabo v Queensland (No 2) (1992) 175 CLR 1).

More recently in the Teoh decision the High Court held that the ratification of a human rights treaty (in this case CROC) created a legitimate expectation that government decision-making would be in accordance with the principles and provisions of the treaty. Mason CJ and Deane J in a joint judgment stated that ratification of an international treaty was ‘not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences international accepted standards to be applied’ (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). Finally, another response to human rights abuses may be through the use of civil remedies within Australian courts, particularly where neglect or breach of duty of care or other statutory duties can be demonstrated. As a result of legal action taken by Aboriginal Legal Services for the families of those who died in custody, compensation has been paid in a number of cases investigated by the Royal Commission. In the Quayle case the New South Wales Police Service and the Wilcannia hospital were both found to be negligent. Members of the family were awarded a total of $120 000 in compensation.4 In the Boney case legal proceedings were commenced by the Western Aboriginal Legal Service. The New South Wales Police Service admitted liability and arrived at an out-of-court settlement with family members for an undisclosed amount. In the Gundy case, the New South Wales Police Service made an ex gratia payment for compensation to the Gundy


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family—some four years after the Royal Commission recommendation. Other actions for compensation include a matter currently before the Northern Territory courts for an Aboriginal man (name suppressed) who died in Darwin prison in 1985. Families have begun actions for negligence against custodial authorities in a number of cases of Indigenous deaths in custody that occurred in the post Royal Commission period. These include two deaths by hanging in police and prison custody in New South Wales (Macquarie Fields police station 1992—this was settled in an out-of-court agreement—and Parklea gaol 1994); a hanging each in prison custody in Queensland and Western Australia (Townsville gaol 1992 and Greenough gaol 1991) and a hanging in a police lock-up in the Northern Territory (Bathurst Island 1996). Two further deaths in the Northern Territory have led to civil litigation. These involve the death of an Aboriginal man in prison custody in Alice Springs in 1997 and the death of an Aboriginal juvenile in police custody in 1998.

INDIGENOUS SELF-DETERMINATION Policing and the exercise of criminal jurisdiction in Indigenous communities is inevitably bound up with issues of sovereignty and claims of rights to self-determination and self-government. A widespread view among Indigenous peoples is that their sovereignty has never been extinguished in Australia. Such a claim can derive from challenges to the legal basis of the acquisition of the Australian colonies through occupation and settlement or from the view that sovereignty continues to be exercised by Indigenous communities in many parts of Australia where modes of governance have continued despite the formal declarations of Anglo-Australian law. Ultimately these claims rest on the view that Indigenous people have pre-existing rights to self-government and contemporary rights to self-determination. Such claims have profound implications for the right to police, to enforce the law and to maintain order in Indigenous communities. Historians like Reynolds (1996) have shown that as settler knowledge of Indigenous people developed during the nineteenth century it became clear that Aboriginal communities exercised political and legal dominion over the country. Management of tribal affairs through particular forms of political and moral authority came to be understood, as did the close connection between tribes and particular areas of land; the ways in which


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inter-tribal discourse was conducted; and the strength and depth of tribal law. As Justice Blackburn came to recognise in the Gove land rights case: The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not men’, it is that shown in the evidence before me (Milirrpum v Nabalco (1971) 17 FLR 141 at 267).

Yet key nineteenth-century decisions establishing criminal jurisdiction over Indigenous people (Murrell) and Australia as settled on the basis of terra nullius (Cooper v Stuart) denied that Indigenous people had reached the required state of civilisation to be viewed as exercising sovereignty—that Australia was practically unoccupied and without settled law. Significantly, the law developed and continues to develop differently in the United States and Canada, where the principle was accepted that Indigenous nations did not lose all claims to self-government upon the Crown’s assumption of sovereignty. While Indigenous nations did not retain the full attributes of sovereignty after colonisation they did continue to exercise limited rights as distinct peoples, including rights to selfgovernment over internal matters in specific areas. Recently, the Canadian Royal Commission on Aboriginal People recognised that Aboriginal people retain the inherent right to self-government within Canada. The reason that the right is inherent relates to the source of the right: . . . it finds its origin within Aboriginal communities, as a residue of the powers they originally held as autonomous nations. It does not stem from constitutional grant, that is, it is not a derivative right. The distinction between an inherent right and a derivative right is not a mere matter of symbolism (cited in Reynolds 1996, p. 132).

In Australia the High Court in Mabo (No 2) recognised that Indigenous entitlement to land continued to exist after colonisation—that Aboriginal native title had been incorporated into the common law. The critical legal and historical question, then, is why, if the laws and customs which define native title have continued after colonisation, are the laws and customs which provide the modes of governance of day-to-day life, indeed which provide the moral and ethical foundations for prescribing and


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judging right and wrong in particular Indigenous communities, not also surviving under the same legal principles as found in common law native title? Discussions of the right to self-determination also raise the issue of the inherent difference between Indigenous people and other minority groups in Australia. Indigenous people have a special political status which derives from their position as first nation peoples whose rights predate colonisation. This special position has at least two implications for policing. In the first instance, it is too simplistic to assert that Indigenous people are subject to oppressive policing practices simply because of their ‘racial’ or ethnic difference. To be sure, crime has become racialised, and while there may appear to be similarities between, for example, how Indigenous youth and Indo-Chinese young people are treated by police, the evidence shows that no ethnic minority group is subject to the same level of criminalisation in Australia as are Indigenous people. This extraordinary level of criminalisation relates directly to the status of Aboriginal and Torres Strait Islander people as the indigenous people of Australia who have been subject to the specific colonial practices outlined in this book. Indigenous people have an inherent political status flowing from their position as the first inhabitants—the original owners—of the country. These rights relate directly to self-determination, and this provides the second implication for policing—the right of Indigenous peoples to exercise jurisdiction over the definitions and administration of policing and the criminal law. Indigenous aspirations for self-determination The legal and political concept of self-determination has a long history which is beyond the scope of this book. However, it is worth noting that its re-emergence at the time of World War I saw the concept develop several particularly strong components. For Lenin, the principle had particular application for the right of ethnic and national groups to freely determine their own destiny. In addition the principle provided colonised peoples with the right to liberation from colonial powers. For Woodrow Wilson, the concept originated within western democratic theory and was particularly directed towards ensuring democracy and the ‘consent of the governed’ (Cassese 1995, pp. 15–23). These central concerns of decolonisation, the rights of peoples and the requirement


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of states to ensure political representation have developed as core parts of the concept of self-determination. Self-determination as it has developed in the post World War II period was affirmed in the United Nations Charter and other instruments including the ICCPR and the International Convention on Economic, Social and Cultural Rights (ICESCR). Selfdetermination derives from international law’s framework of human rights. It is universal in its scope and is concerned with human beings rather than sovereign entities (Anaya 1996, p. 76). However, self-determination is also centrally concerned with issues of governance, with the character of government structures. It is a standard of legitimacy against which institutions of government can be measured. According to Anaya, ‘self-determination is a configurative principle or framework complemented by the more specific human rights norms that in their totality enjoin the governing institutional order’ (1996, p. 77). In metaphorical terms, Michael Dodson has noted that ‘self-determination is the river in which all other rights swim’ (quoted in Scott 1996, p. 814). The concept of self-determination in relation to Indigenous people has had a chequered history in Australia over the last three decades. Certainly, it has been central to federal policy during the periods in which the Labor Party has been in government. In contrast, conservative Australian governments have tended to use terms such as ‘self-management’ and ‘self-empowerment’. The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs drew the following distinctions between the contrasting approaches: self-management focuses on efficient administration of programs and policies; selfdetermination goes beyond this and ‘implies control over policy and decision-making, especially the determination of structures, processes and priorities’ (1990, p. 4). According to the Standing Committee, self-determination is about ‘Aboriginal control over decision-making processes as well as control over the ultimate decision about a wide range of matters including political status, and economic, social and cultural development’ (1990, p. 12). During the late 1980s and 1990s self-determination increasingly came to be seen as critical to Indigenous aspirations within Australia. The development of ATSIC was seen by the Labor Government as a significant step towards self-determination. The then Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, said that ‘for the first time in the administration


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of Indigenous people’s affairs, the power to allocate funding and determine priorities at a national level has been . . . given over to the elected representatives of Aboriginal and Torres Strait Islander people’ (quoted in Cunneen and Libesman 1995, p. 196). The importance of self-determination was reflected in the work of the Royal Commission into Aboriginal Deaths in Custody. The Royal Commission formulated a specific recommendation on selfdetermination which provides the context for the other 338 recommendations.5 This recommendation encompasses the philosophical and political basis of action to implement the recommendations of the Royal Commission. It also indicates actual processes to be used. All Australian governments at the time committed themselves to implementing this recommendation. During the 1990s appeals to the principle of Indigenous self-determination permeated all the key national discussions by Indigenous organisations. Michael Dodson (1993) in his first annual report in the then newly created federal position of Aboriginal and Torres Strait Islander Social Justice Commissioner stated that: The crucial importance of self-determination to Aboriginal and Torres Strait Islander people is little appreciated by non-Indigenous Australians. Correctly understood, every issue concerning the historical and present status, entitlements, treatment and aspirations of Aboriginal and Torres Strait Islander peoples is implicated in the concept of self-determination. The reason for this is that selfdetermination is a process. The right to self-determination is the right to make decisions (Dodson 1993, p. 41).

Dodson further elaborated specific aspects of the right to self-determination, in particular that it is a collective right of distinct peoples and that it entitles the free determination of political status. Dodson noted that government policy was not based on recognition of the inherent right of Indigenous people in Australia to self-determination. Rather than being founded as a right in international law, Australian governments recognised self-determination as a distinct administrative policy for Indigenous people because of their unique status in Australia. For Indigenous people the problem with this is that governments change. The Howard Government has withdrawn its support for selfdetermination both in relation to domestic policy for Indigenous people, and internationally, where it plans to urge the United


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Nations to drop the term self-determination and replace it with self-management or self-empowerment (ATSIC 1999, p. 118). In 1995 ATSIC, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner each produced a report for the then Labor Federal Government on social justice measures for Indigenous people. All three reports stressed the fundamental principle of selfdetermination for Indigenous people as a basis to ensure social justice. For example, the ATSIC report stated that ‘there is no right more fundamental for Indigenous people than that of selfdetermination’ (ATSIC 1995b, p. 28). Specifically in matters connected to policing and the administration of justice, ATSIC noted that self-determination underpinned the recognition of customary law; the re-assertion and development of community self-governance; and the negotiation of flexible forms of selfgovernment (ATSIC 1995b, p. 29). Importantly, ATSIC noted that self-determination should not be constrained within existing legal and political structures. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families also used the concept of self-determination as the key principle underpinning its consideration of the contemporary removal of Indigenous children through welfare and juvenile justice processes (NISATSIC 1997, pp. 562–80). The Inquiry argued for a new framework which respects the right to self-determination for Indigenous people and complies with other international obligations for the treatment of children and young people. It advocated a two-tiered approach, with recommendations for national framework legislation for negotiation and self-determination in areas (including juvenile justice and welfare) that affect the well-being of Indigenous children and young people, and recommendations for the development of minimum standards applicable to juvenile justice and welfare interventions. Many of these recommendations directly impact on the role of police in Indigenous communities and the potential transfer of jurisdiction over matters such as juvenile justice and child welfare. Meanwhile, there have been many developments at local, state and territory level where the discussion of self-determination has evolved with particular ramifications for policing and the administration of justice. In 1993 the Northern Territory Aboriginal Constitutional Convention discussed at length the issue of Aboriginal self-government during its deliberations.6 In summary, it


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found that self-government means greater Aboriginal selfdetermination and autonomy; the owning of decision-making structures that are appropriate to local situations; the control and authority over internal affairs; the setting of priorities and policies, and the selective taking over of services such as education, child welfare, social services, policing and justice, health, land and resource planning and environmental protection. Conversely, it found that self-government does not mean full independence or the creation of a sovereign entity outside the boundaries of the Australian nation-state. The official push towards statehood in the Northern Territory largely ignored Aboriginal aspirations for self-determination and self-government. Because of dissatisfaction with the Statehood Convention held in Darwin in 1998, Aboriginal people held their own convention, which resulted in the Kalkaringi Statement. This statement reiterated the concerns of the earlier Aboriginal Constitutional Convention and called for (among other matters) the recognition of Aboriginal rights to self-determination, the inherent right to self-government, and the recognition of Aboriginal law and Aboriginal structures of law and governance. Specifically, the statement called for negotiation over the administration and resourcing of community justice mechanisms (Pritchard 1998b, pp. 12–15). The issue of developing local decision-making in Indigenous communities in Queensland was considered in an inquiry and report by the Legislation Review Committee (1991). The Committee was required to consider ‘a new legislative framework consistent with government policy for Aboriginal and Torres Strait Islander communities to control and manage their own destinies’ (Legislation Review Committee 1991, p. 1). In its consultations with Indigenous communities, the Committee found widespread support for autonomy in community decision-making. The Committee proposed that such autonomy could be developed through appropriate community government legislation. Such legislation would allow Community government structures to have all local government powers and functions for an area. Briefly, governing structures would also have express functions and powers in the following areas: education, housing, health, employment, business and enterprise, recognition of custom, administration of justice, maintenance of peace, order and safety, management of natural resources, access and


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right of residency, alcohol and drug control, elections and referenda (Legislation Review Committee 1991, p. 9).

Thus the Committee was advocating powers additional to those available to mainstream local authorities. These powers would cover issues such as the recognition of customary rights, laws and traditions, and the administration of justice, police and corrections. The Committee recommended the development of community government constitutions whereby Indigenous communities could tailor jurisdictional options to meet their concerns, needs, circumstances and aspirations as Indigenous people (Legislation Review Committee 1991, p. 13).

SELF-DETERMINATION IN THE INTERNATIONAL CONTEXT The struggle for Indigenous rights now exists in an international context. It is a matter of global politics, in which nation-states can no longer claim that Indigenous rights are merely issues of domestic policy. In particular, the work of the United Nations Working Group on Indigenous Peoples (WGIP) during the 1980s and 1990s brought a new level of internationalism to the question of Indigenous rights. The international arena has also been important for forcing the reconsideration of Australian domestic policy in the light of international comparisons of Indigenous policy. For instance, the USA has provided an example of the recognition of the residual sovereignty residing in native American nations. The recognition of native jurisdiction in the administration of justice in the US and the development of federal legislation in areas such as the Indian Child Welfare Act 1978 provide examples for discussion within Australia. Many of the submissions to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families recommended overriding federal legislation in the area of child welfare along the US lines. Administration of criminal justice in native American nations such as the Navajo provide distinct examples that Indigenous jurisdiction can work effectively (Yazzie and Zion 1996). The Navajo exercise jurisdiction over 200 000 people—slightly more than the population of the Northern Territory. Various forms of Indigenous self-determination are being practised around the world. In many cases they involve taking responsibility for policing and justice. In the Philippines, the Indigenous Peoples Rights Act 1997 recognises the inherent right of


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Indigenous people to self-governance and self-determination. This includes the right to use their own accepted justice system and conflict resolution institutions and customary laws (Henrikson 1998, p. 33). In Canada the Nunavut Territory was created in 1999, based on an earlier agreement for self-government between the Canadian Government and the Inuit people. Among many other powers, the Nunavut authority manages justice issues within its territory (Henrikson 1998, p. 37). The culmination of the work of the WGIP during the 1980s and early 1990s was the draft Declaration on the Rights of Indigenous Peoples. Because of the participatory involvement of Indigenous people in the drafting process, this draft Declaration represents the emerging human rights norms which reflect the aspirations of Indigenous people (Coulter 1995; Pritchard 1998a). The draft Declaration contains a number of basic principles, including selfdetermination, which directly impact on the development of self-government and the exercise of control over policing and matters of criminal justice. The draft Declaration affirms ‘the right of Indigenous people to control matters affecting them’ including the right of self-determination (Coulter 1995, p. 128). Article 3 of the draft describes the right of self-determination as involving the free choice of political status and the freedom to pursue economic, social and cultural development. Article 4 provides that, Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they choose, in the political, economic, social and cultural life of the State [emphasis added].

Article 31 sets out the extent of governing powers of Indigenous peoples. Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy, or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.

Taken together, these articles provide the basis for Indigenous people to maintain cultural integrity and exercise jurisdiction over


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various justice matters. At the same time they provide for the right of Indigenous people to participate fully, if they choose, in the political, economic, social and cultural life of the state. Part II of the draft Declaration is concerned with the rights to life and existence. Of particular relevance is the right to existence as a collective right of Indigenous peoples to maintain and develop their distinct identities and characteristics. It has been recognised that a major theme of the draft Declaration is the ‘protection of the unique character and attributes of Indigenous peoples, including culture, religion and social institutions’ (Coulter 1995, p. 127). Articles 6 and 7 of the draft Declaration deal with genocide, ethnocide and cultural genocide, specific problems affecting many Indigenous people (Coulter 1995, p. 133). The draft Declaration expands international human rights through the development of provisions on ethnocide and cultural genocide (Article 7). According to Burger and Hunt (1994), these provisions represent a logical extension of existing international law. Article 7(d) prohibits ‘any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures’. These provisions have implications for how we think about policing and criminal justice in Australia. Both the criminal law and the day-to-day practices of policing may seek either directly or indirectly to impose the standards and cultural and social mores of the dominant group on Indigenous communities, and has constituted an important part of the process of isolating and excluding Indigenous people. Policing has been at the ‘front end’ of imposing governmental structures on Indigenous people which directly affected their capacity to develop as distinct communities. Erica-Irene Daes, the chairperson of the WGIP, has referred to the requirements of self-determination as a form of ‘belated statebuilding . . . This process does not require the assimilation of individuals, as citizens like all others, but the recognition and incorporation of distinct peoples in the fabric of the State, on agreed terms’ (quoted in Anaya 1996, p. 87). The form which self-determination might take in Australia is something that will be worked out over time and will no doubt vary from place to place. Whatever form it takes will have implications for how police operate in Indigenous communities. Constitutional reform also remains a key issue for Indigenous people. ATSIC has identified eight goals for reform, all of which have a potential impact on policing issues. In the short term,


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ATSIC supports the adoption of a preamble to the Constitution which would include, inter alia, the recognition of Aboriginal and Torres Strait Islander peoples with continuing rights as Indigenous peoples (including the right of self-determination). ATSIC supports the constitutional entrenchment of a general guarantee against discrimination on the grounds of race. In the longer term ATSIC supports constitutional recognition of pre-existing rights of Indigenous people (such as section 35, Canadian Constitution Act 1982) within a general Australian Bill of Rights (Brennan 1994; ATSIC 1995b). Indigenous self-government is a distinct possibility in Australia. Many Indigenous organisations have cited the case of Norfolk Island as an example of the recognition of selfgovernment (Norfolk Island Act 1979). The community was granted self-government on the basis of ‘the special relationship of the (Pitcairn) descendants of Norfolk Island and their desire to preserve their culture’. The community has limited powers in relation to law and order, taxation, education, immigration, health and social welfare (Dodson 1993). The communities of the Torres Strait have moved some way towards self-government with the establishment in 1994 of the Torres Strait Regional Authority. The Authority and the Island Coordinating Council have expressed a desire to achieve full self-government by 2001—a move supported by the Council for Aboriginal Reconciliation (1995). Localised self-government could also arise through the model advocated by the Legislation Review Council in Queensland, whereby Indigenous communities would exercise self-determination with greater local powers of self-government through community constitutions. Finally, we might consider the role of regional agreements in transferring greater power to Indigenous people. The concept of regional agreements derives from Canadian experience, where self-government powers have been devolved in the form of agreements between the Federal Government and Indigenous peoples. The Canadian use of negotiated agreements arose after the Supreme Court recognised in Calder (1971) that native title might continue to exist in parts of Canada (Jull and Craig 1997). The devolution of responsibility through regional agreements has included criminal justice administration in particular areas. The devolution of responsibility through regional agreements can occur without the necessity of constitutional change, although, as Jull and Craig (1997, p. 481) point out, the making of agreements


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through bringing together two peoples and two cultures in a process to share political and economic power is a constitutional process. In Australia, the Kimberley and Cape York Land Councils in particular have promoted the idea of regional agreements as a method of ensuring greater autonomy (ATSIC 1995c; Aboriginal and Torres Strait Islander Social Justice Commission 1995). The demand for self-determination is widespread among Indigenous communities throughout Australia. The concept itself is one which is evolving and certainly does not have a predetermined content. What is clear is that the appeal of selfdetermination for Indigenous people lies in the fundamental shift which it represents in existing power relations. The claim of the right to self-determination is a claim for a transference of power— a rearrangement of existing relations between state and community. Inevitably this involves a re-thinking of police and law. Whether Indigenous communities form larger political entities which take on the full role of self-government remains to be seen. In an urban context self-determination may translate to greater autonomy within existing structures of state and local government. These matters cannot be pre-judged. Developing a new interface between policing and Indigenous people within a context of self-determination is both a theoretical and a practical political task. There is no single blueprint for operationalising self-determination in the area of policing and community justice. However, the lesson of successful Indigenous community justice responses is that efficient, practical and ongoing support from governments is required to facilitate communities in the difficult process of finding acceptable solutions. Difficulties in developing Indigenous justice processes will also need to be overcome. The extent to which there is an identifiable Indigenous community with identifiable interests will affect how the practice of policing and the principle of self-determination interact. Indigenous people in Australia live in many different circumstances with varying levels of interdependent networks. Other questions which will need to be addressed include how differences and conflict between Indigenous groups will be settled, and what processes there will be for making decisions. If Indigenous communities and regions decide to exercise their own jurisdiction over policing and criminal justice matters, how will this impact on non-Indigenous offenders and victims? How will jurisdiction be conceived and exercised, and which areas of law will be encompassed?


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The Northern Territory Aboriginal Constitutional Convention found that no single approach or model of self-government will meet the needs or aspirations of all Aboriginal people. Each community should be able to determine the most appropriate form of government, the process for establishing it, and the priorities and level of service. Funding should be compatible with the economic circumstances of the community. In matters of national interest (for example, health) funding should be conditional upon agreement. In matters of local priority (for example, recreation or road maintenance) funding should be unconditional. The principles which might underlie governmental approaches to self-determination include open negotiation with Indigenous communities and their organisations by governments and their departments; respect for Indigenous people and their culture; respect for Indigenous human rights, including the right to self-determination; relinquishment by governments and their departments of their assumed right to make decisions for Indigenous people; ongoing practical support for communities to remedy the problems of social and economic inequality through an approach that relies on community building; and a commitment to facilitate solutions to issues that are acceptable to Indigenous communities. Conclusion This book provides an analysis of the relationship between police and Indigenous people in Australia through a detailed examination of particular policing practices such as over-policing, the adverse use of police discretion, the use of paramilitary police in communities and the role of police culture in the criminalisation of Indigenous people. There has also been extensive discussion of the notion of ‘community’, particularly in the context of community policing and in the construction and regulation of social space. The criminalisation process has been shown to be an important factor in separating Indigenous people from perceived notions of community. This book argues that many of the contemporary practices of policing can be traced through the history of colonisation and the particular role which police have played in this process. Indeed, the distinct nature of the relationship between police and Indigenous people and the over-representation of Indigenous


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people in the criminal justice system is symptomatic of the failure to decolonise policing as an institution. The book also looks to the future through a consideration of how policing can develop in a way which is respectful and enhancing of the human rights of Indigenous people. A primary consideration in this process will be the development of strategies and policies built on the recognition of Indigenous self-determination. Thus the final chapter has been concerned with what might be regarded as the process of decolonising the institution of policing. It is difficult to talk seriously about government commitment to self-determination when criminal justice administration prioritises essentially non-Indigenous modes of neocolonial control. There is an official claim to support self-determination (defined as a form of government policy at the state and territory level), but the reality of criminal justice practices is often the opposite. The process of criminalisation, the denial of human rights, marginalisation and incarceration ensure that Aboriginal and Torres Strait Islander people are maintained as a dispossessed minority, rather than a people with legitimate political claims on the nation state. In Chapters 8 and 9 some of the specific processes which undermine Indigenous governance were outlined. These include processes of indigenisation as a substitute for self-determination. Fundamental in this area is the failure to transfer power. Tokenism is one example of the process of indigenisation, where Aboriginal people are brought into mainstream structures without substantial power to effect change. Indigenous community policing initiatives (such as night patrols) operate without statutory authority for the work they undertake, and within a climate of scarce and insecure resources. Counterpoised to the processes of indigenisation are the productive efforts of Indigenous communities to extend and consolidate the realm of Indigenous decision-making. A primary concern of this book has to be to situate policing within the broader political and legal debates over the role of Indigenous people within the nation-state. It is an attempt to take policing out of a narrow administrative view of the police function and to see the institution within the broad totality of governmental relations with Indigenous people. That said, a defining feature in relation to state power is the ‘legitimate’ use of violence and the deprivation of liberty of individuals. It is these characteristics associated with policing and criminalisation that remain important features of the relationship between the Australian nation-state and


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the Indigenous people of the continent. There is a complex process occurring where sovereignty and the unqualified right to selfdetermination of Indigenous people is denied (the Australian state is sovereign, indivisible and non-negotiable), while simultaneously citizenship as social participation is practically denied to Indigenous people through processes of criminalisation. Thus, a defining feature of a neocolonial relationship can be established whereby formal equality is celebrated but Indigenous people are redefined as non-citizens. In the earlier colonial period, Indigenous people were prevented from being regarded as citizens because they were constructed as biologically/racially inferior. In neocolonial politics, Aboriginal people are non-citizens because they are constructed and reproduced as criminals. Aboriginal people are denied both citizenship and social participation because of criminal status. Simultaneously they are denied distinct political rights which might arise as a result of their indigenous status. Citizenship must be considered in the light of the colonial relationship in Australia, the process of criminalisation effectively denying the formal citizenship rights which Indigenous people are said to enjoy. The nation-state attempts to formally incorporate Indigenous people as citizens of the nation while at the same time presenting their claims as a threat to the political and moral unity of the nation. One way of denying the legitimacy of those claims is through a process which establishes Aboriginal people as a law and order problem and therefore the ‘legitimate’ subjects of surveillance, intervention and, in more extreme cases, terrorisation. Indigenous people are subjected to forms of power and control barely used in the broader community. Assumptions about inherent criminality are made ‘obvious’ through the processes of criminalisation and are then used to legitimate such interventions. This, indeed, is the substance of the intersection between racialisation and criminalisation. Much of the criminological literature in Australia considers Aboriginal ‘over-representation’ by combining explanations of various factors including the commission of offences, assumed criminogenic factors relating to social and economic environments and, to a lesser extent, selective law enforcement procedures. Very few analyses consider the nature of the relationship between Aboriginal people and the ‘law’ as deriving from the processes of colonialism. In other words, most explanations fall at a low level of theorisation, to the extent that they rely on characteristics such as unemployment, family structure


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or cultural difference to explain Aboriginal over-representation. Mid-range theories tend to at least consider the relationship between colonisation and its effects (unemployment, for example). It has been argued here that theory needs to employ notions of postcolonialism and neocolonialism to understand the contemporary relationship between Indigenous people and the criminal justice system. This book has also been about exploring the possibilities of policing; about re-thinking key concepts in policing, particularly the notion of community policing, in the light of Indigenous aspirations for self-determination. At a broad level, this re-thinking is necessary to respond to the demands of ‘differential citizenship’ (Havemann 1999, p. 472). This term represents a new notion of citizenship based on collective rights (self-determination), as well as the traditional individual rights associated with liberal notions of citizenship. Collective rights for Indigenous peoples are embodied in the principle of self-determination, yet individual rights are also an important aspiration—particularly those rights relating to freedom from arbitrary state intervention and freedom from racial discrimination. This book has also demonstrated that Indigenous resistance to colonial power has been productive of new spaces for the exercise of Indigenous governance over policing and criminal justice issues. Throughout Australia, Aboriginal communities have continued to exercise authority, or have at least attempted to develop localised methods of dealing with problems of social disorder. Indigenous practice has provided us with the opportunity and the necessity to re-think the possibilities of a postcolonial relationship between police and community.


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CHAPTER 1 INTRODUCTION 1. For example, see New South Wales Office of the Ombudsman (1995); Human Rights and Equal Opportunity Commission (1991); and Amnesty International (1993). 2. In addition to the reports of the Royal Commission into Aboriginal Deaths in Custody, other significant national reports include the Australian Law Reform Commission’s The Recognition of Aboriginal Customary Law (ALRC 1986); the Human Rights and Equal Opportunity Commission’s National Inquiry into Racist Violence (HREOC 1991); the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs’ Justice Under Scrutiny (1994); the Aboriginal and Torres Strait Islander Commission’s Three Years On (ATSIC 1995a); a report by Cunneen and McDonald (1997a), Keeping Aboriginal and Torres Strait Islander People Out of Custody for the Aboriginal and Torres Strait Islander Commission; and the Office of the Aboriginal and Torres Strait Islander Social Justice Commission’s (1996) report Deaths in Custody 1989– 1996. 3. See R v Lowe (1827) Supreme Court of New South Wales, unreported; R v Ballard (1829) Supreme Court of New South Wales, unreported; R v Murrell (1836) Legge 72; R v Bon Jon (1841) Supreme Court of New South Wales, Willis, J, 18 September 1841, unreported; R v Wedge [1976] 1 NSWLR 581; R v Archie Glass, Supreme Court of New South Wales, Sulley J, 22 January 1993, unreported; R v Jacky, Supreme Court of New South Wales, Campbell J, 10 June 1993, unreported; Walker v New South Wales (1994) 182 CLR 45. For discussion of these cases see McRae et al. (1997, pp. 157–60), Cunneen and Libesman (1995, pp. 27–8), Reynolds (1996, Chapter 1)

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4.

5.

6.

7.

8.


and Kercher (1995, pp. 9–12; 1998), also case notes in the Aboriginal Law Bulletin, vol. 63, no. 18 and vol. 63, no. 19. This definition follows Anaya (1996, p. 3) and is consistent with definitions used by the United Nations Working Group on Indigenous Population (WGIP). For discussion of definitional issues within the WGIP and the potential political implications see Pritchard (1998a, pp. 42–4). Of course, legal discrimination only changed slowly. Commonwealth amendments to electoral laws in 1962 removed any remaining prohibitions on voting at the federal level. Discriminatory restrictions on eligibility for social security benefits for Aboriginal people were not completely lifted until 1966. States began to dismantle their discriminatory laws during the same period. Restrictions on Indigenous voting rights in Queensland were not removed until 1965. While the 1967 referendum provides a symbolic marker in the process, it was not necessarily a legal watershed. Indeed, oppressive state legislation which restricted the citizenship rights of Aboriginal and Torres Strait Islander people living on reserves in Queensland remained in place until the 1980s (see generally Chesterman and Galligan 1997). The 1937 Native Welfare Conference had accepted the idea that Aboriginal people’s destiny would be their ‘ultimate absorption by the people of the Commonwealth’. By the third Native Welfare Conference in 1951 the rhetoric of assimilation had been adopted: ‘Assimilation means, in practical terms, that, in the course of time, it is expected that all persons of aboriginal blood or mixed blood in Australia will live like other white Australians do’ (Sir Paul Hasluck quoted in NISATSIC 1997, p. 34). The United Nations Draft Declaration on the Rights of Indigenous Peoples and its implications for policing is discussed in the final chapters. For discussion of these cases, and their various influences on Australian legal thinking see McRae et al. (1997, pp. 147–60), Kercher (1995, pp. 9–12) and Reynolds (1996).

CHAPTER 2 THE CRIMINALISATION OF INDIGENOUS PEOPLE 1. It should be noted that not all people arrested are held in custody. Conversely, not all people held in police custody have been arrested and charged with a criminal offence. For


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instance, provisions under which the decriminalisation of public drunkenness has occurred in New South Wales, the Northern Territory, Western Australia and South Australia allow for various forms of ‘protective custody’. For greater discussion of the results of the various police custody surveys see McDonald (1992, 1993), Carcach and McDonald (1997) and Cunneen and McDonald (1997a, pp. 19–23). This view was reflected in the Royal Commission into Aboriginal Deaths in Custody which recommended that governments should ‘legislate to enforce the principle that imprisonment should only be used as a sanction of last resort’, Recommendation 92 (Johnston 1991a, vol. 5, p. 90). The year 1988 is usually selected as an early benchmark because it is the first year that national data which includes Aboriginality are available—Queensland had previously refused to collect prison data which identified Aboriginal and Torres Strait Islander people. The year 1988 is also useful because it marks the release of the Interim Report of the Royal Commission into Aboriginal Deaths in Custody. Recommendation 1 of that report was that imprisonment should only be used as a sanction of last resort (Muirhead 1988, p. 24). In New South Wales, Indigenous prisoners increased from 385 in 1988 to 883 in 1995. The rate per 100 000 increased from 988 to 1883 during the same period. In South Australia, Indigenous prisoners increased from 114 in 1988 to 258 in 1995. The rate per 100 000 increased from 1251 to 2336 during the same period (Cunneen and McDonald 1997a, p. 29; ATSIC 1997, p. 76). There are problems with more recent data from the Australian Bureau of Statistics on Aboriginal imprisonment. New South Wales failed to supply data on Aboriginal detainees in 1998 and 1999. There is neither information from that state nor, as a result, national data available on Aboriginal imprisonment in ABS publications for those years. Care should be used in interpreting rates and overrepresentation in jurisdictions which have low numbers of either Indigenous or non-Indigenous young people incarcerated, such as the ACT, Tasmania and the Northern Territory. LaPrairie (1997, p. 41) also notes that various factors may interact to cause over-representation. She identifies differential criminal justice processing as a result of cultural difference and racism, higher levels of offending and different types of


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8. 9.

10. 11.

12.

13.


offending by Indigenous people, and the differential impact of policies and practices due to the socioeconomic position of Indigenous people. Rates per 100 000 of the respective populations, ‘offending’ based on prison census data. See, for example, ADB (1982); Cunneen and Robb (1987); Gale et al. (1990); Luke and Cunneen (1995); Mackay (1995); Allas and James (1996); Cunneen and McDonald (1997a); Luke and Cunneen (1998). Clear-up rate: the percentage of recorded offences cleared by police. For instance, it is not surprising that Indigenous people receive shorter sentences for drug offences given their lack of involvement in more serious trafficking offences. For an examination of these issues two decades ago see the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs’ Report on Aboriginal Legal Aid (Ruddock 1980). The courts have also expressed concern in this regard in R v Williams (1976) 14 SASR 1 and Collins v R (1980) 31 ALR 257. For an early summary of these issues see Rees (1982). More recent reports drawing attention to the same issues include the Royal Commission into Aboriginal Deaths in Custody (Johnston 1991a) and CJC (1996). See Brennan (1991) for a succinct discussion of why Indigenous people are not simply an oppressed minority group within Australia.

CHAPTER 3 THE NATURE OF COLONIAL POLICING 1. Justice Toohey noted that ‘the need for statutory regulation was brought about by movements in New South Wales in the late 1820s to occupy large areas of land to depasture stock. The ‘‘squatters’’ moved on to land to which they had no title. The land was unsurveyed, their activities were uncontrolled’ (Wik Peoples v State of Queensland Toohey J at 171, also Kirby J at 266). See also Reynolds and Dalziel (1996). 2. The Royal Commission into Aboriginal Deaths in Custody noted that ‘police have been until very recent times, and in many places continue to be, the section of the non-Aboriginal community with which Aboriginals have had most contact. It has for the most part been a highly repressive contact, which gave Aboriginals much reason to fear and dislike police, and


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little reason to think well of them’ (Wootten 1991a, p. 272). See also Goodall (1982, p. 178) and Johnston (1991a, vol. 2, p. 21). For a discussion of the continuity in Aboriginal oral traditions concerning violent dispossession see Goodall (1996, pp. 33–5), Cunneen and Robb (1987, p. 189); for discussion of conflict with ‘the law’ as a major theme of Aboriginal oral history see McGrath (1993, pp. 101–2). Colonisation by way of settlement did not preclude the recognition of pre-existing Indigenous rights. This was the case in the United States, and at least in relation to property rights and native title in Australia after the Mabo (No 2) decision. Kercher notes that in Ballard the New South Wales Supreme Court accepted the argument of lack of jurisdiction over an Aboriginal person charged with killing another Aboriginal person. The Chief Justice found that ‘it has been the practice of the Courts of this country, since the Colony was settled, never to interfere with or enter into the quarrels that have taken place between or amongst the natives themselves’ (quoted in Kercher 1998, p. 8). This argument was to be reversed seven years later in Murrell. The Colonial Secretary, Earl Grey, to the Governor of New South Wales, Sir Charles FitzRoy, 11 February 1848. See Reynolds and Dalziel (1996). For discussion of whether Aboriginal people in Tasmania were an ‘injured nation’ with whom the British were at war see Reynolds (1989, pp. 11–12) and, generally, Reynolds (1995). For legal discussion of the issue see R v Bon Jon, Supreme Court of New South Wales, 18 September 1841, unreported, Willis J. In the Napoleonic Wars, in Ireland and in suppressing civil disturbances in England and Scotland (Millis 1994, pp. 11–12). For general material see Elder (1988) and Reynolds (1989); for New South Wales see Milliss (1994); for Western Australia see Gill (1977), McGregor (1993), Green (1995); for Northern Territory see Markus (1990); for Queensland see Reynolds (1993), Moore (1993). Report of the Select Committee on Native Mounted Police, Votes and Proceedings, Queensland Legislative Assembly, 1861. Quoted in Armstrong (n.d., p. 109). The Queenslander noted in 1880: ‘How many of us understand the euphemistic word ‘‘dispersal’’? If it is advisable that, as a


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13. 14.

15. 16.

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colony, we should indulge in wholesale murder . . . Let us have the courage of our opinions, and murder openly and deliberately, calling it murder and not ‘‘dispersal’’.’ Quoted in Armstrong (n.d., p. 111). The Queensland AttorneyGeneral had told parliament in 1861 that ‘disperse’ meant ‘firing at them’. Quoted in Reynolds 1990, p. 53. Archibold Meston’s 1895 report, Queensland Aboriginals: Proposed System for their Improvement and Preservation, had called for the establishment of protection legislation. For a different view of what the declaration of martial law meant see Reynolds 1995, pp. 110–12. Markus argues that there was a tradition in the Northern Territory ‘still in evidence in the early 1940s, for juries to acquit whites charged with the murder of Aborigines except in the most blatant and unusual cases . . . The first consideration in the administration of justice was the race of the accused’ (1990, p. 108). The proportion held in trust depended on the age, sex and marital status of the person (Loos 1993, p. 27). See Cunneen and Robb (1987, pp. 195–7) for a summary of the anthropological and historical research in this area, also Goodall (1996, pp. 174–8). Goodall provides examples of local Aboriginal people gaining police support against the attempts by the Aborigines Protection Board to revoke and resume Aboriginal farms/reserves during the twentieth century (Goodall 1996, pp. 116–7).

CHAPTER 4 FROM OVER-POLICING TO ZERO TOLERANCE 1. See generally, Chesterman and Galligan (1997, pp. 169, 171– 2) and, specifically on Queensland legislation, Nettheim (1981). 2. It should also be recognised that the divergent experiences of Indigenous people throughout Australia make this at best a general framework for understanding broad changes. In some parts of Australia direct contact with police begins during the 1970s with the transfer of control over communities from churches to government—see the Race Discrimination Commissioner’s 1992 report on Mornington Island. Even today in the Torres Strait, most islands have their own community police and receive only infrequent visits from the state police based on Thursday Island.


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3. Two inquiries were conducted during the 1980s—one by the New South Wales Bureau of Crime Statistics and Research and the other by the (then) New South Wales Ministry of Aboriginal Affairs. For discussion of crime, law-and-order politics and Indigenous people in the north-west see Cunneen and Robb (1987). See also the work by Cowlishaw (1988) on ‘Brindleton’—a fictitious town based on research primarily conducted in Bourke. 4. A noteworthy case involved Ken Brindle, who was assaulted by police after seeking information concerning an Aboriginal man who had been shot dead by police in Redfern. He was later awarded damages for malicious prosecution. For a discussion of the Ken Brindle case, see Bandler and Fox (n.d., pp. 81–92) and Lucas (1995). 5. See Khoury (1996, pp. 181–96) for an extensive discussion on policing and the curfew during the 1960s and 1970s. Also Lyons (1984, p. 138). 6. In 1990 the National Inquiry into Racist Violence commissioned a report on Aboriginal–police relations in Redfern after considerable public concern caused by the use of the Tactical Response Group in the area. The report noted the history of Aboriginal–police relations in Redfern during the 1970s and 1980s. The following discussion is drawn from the report (Cunneen 1990a). 7. The New South Wales Intoxicated Persons Act 1979 enables the detention of people in police cells without being charged with a criminal offence. During the 1980s there were frequent complaints about its misuse in detaining Aboriginal people. For an example of its use in Wilcannia, see Cunneen (1990b). 8. A number of projects and research reports were conducted under the auspices of the Committee, including Roberts et al. (1986) and Jewell et al. (1988). 9. An earlier discussion of this section on ‘over-policing’ appeared in Cunneen (1992a). 10. In addition to the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody, see also Roberts et al. (1986); Cunneen and Robb (1987); Race Discrimination Commissioner (1992); Cunneen (1992a); NSW Office of the Ombudsman (1994); Aboriginal Legal Service of Western Australia (1994); House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (1994); and Cunneen and McDonald (1997a).


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11. For a discussion of changes prior to 1986 see Cunneen and Robb (1987, p. 211). For a discussion of law and order politics in the north-west and its influence on policing see Cunneen (1989) Cunneen (1990a, pp. 163–4) and Goodall (1990b). For a discussion specifically related to Bourke and the peak in police activity during the late 1980s, see Alvarez (1998). 12. Recommendation 88, see Johnston (1991a, vol. 3, p. 43). 13. For example see ADB (1982); Cunneen and Robb (1987); Cowlishaw (1988); Edmunds (1989); HREOC (1991); and various reports of the Royal Commission into Aboriginal Deaths in Custody. 14. For example see various reports by Wootten (1991a, 1991c and 1991e). 15. These three examples are drawn from the National Inquiry into Racist Violence report (HREOC 1991, pp. 87–8). Statements concerning the Rosalie and Annerley incidents are on file with the author. The Rosalie incident is discussed further in Chapter 5. See also the Legal Services Bulletin, April 1987, pp. 76–7. 16. The author was a research consultant to the National Inquiry into Racist Violence. The Brisbane Aboriginal Legal Service wrote a letter of complaint to the then Police Commissioner, Mr Noel Newnham, outlining the incident (4 January 1990, on file with author). The incident was also reported in the media (see Cunneen 1991b). 17. Or detained for ‘protective’ custody in those jurisdictions where public drunkenness has been decriminalised. Of the 99 deaths in custody investigated by the Royal Commission, public drunkenness or public disorder were the reason for custody in 44 cases (Johnston, 1991a, vol. 1, pp. 46–7). 18. For further discussion of these issues nationally see Cunneen and McDonald (1997a, pp. 105–13); for Victoria see Allas and James (1996) and Mackay (1995; 1998). 19. For discussion of this issue by the Royal Commission see Wootten (1991a; 1991b). See also the Australian Broadcasting Commission documentary Cop It Sweet. 20. For further discussion on summary offences and local law and order agendas, see Cunneen (1992d). 21. For data on New South Wales after the introduction of the Summary Offences Act 1988 see Cunneen (1992d); for data on Victoria and Tasmania see Cunneen and McDonald (1997a, p. 115).


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22. Walgett, Brewarrina and Central Darling had at least ten times the state average rate of court appearances for offensive behaviour; Walgett, Brewarrina, Bourke and Central Darling had at least eight times the state average rate of court appearances for offensive behaviour/language combined with either or both resist arrest and assault police charges (Jochelson 1997). 23. For discussion on the formation and functions of the New South Wales TRG, see Cunneen et al. (1989). For their use in Aboriginal communities see Cunneen (1990d). 24. Correspondence from Assistant Commissioner Graham to the New South Wales Police Association (NSW Police News, vol. 64, no. 4, October 1983). 25. In 1988 a new Summary Offences Act was introduced in New South Wales, covering offensive behaviour and offensive language as well as a new offence of violent disorder. The Crimes Act was also amended to include a statutory offence of riot. For comment in relation to the impact on Aboriginal people see Cunneen (1990d). For more general comment on public order legislation see Brown et al. (1990). 26. Discussion on the Redfern Raid, including quotations from various public officials, is drawn from a report prepared by the author for the National Inquiry into Racist Violence (Cunneen 1990a). 27. See Hon. Reg Davies, Western Australia Legislative Council Hansard, 24 November 1992, p. 19; also Sydney Morning Herald, 11 June 1994, p. 7. 28. Correspondence, statements and media reports relating to various raids on the community are on file with the author. 29. Wilson and Keeling offered no empirical evidence to support their ‘broken windows’ thesis when it was first announced. However, it is also important to acknowledge that some policies which have been associated with zero tolerance policing, such as crime mapping, may have a useful impact on reducing the incidence of crime; see Dixon (1998). 30. Shane Stone 1998, pp. 2 and 5. See also NT News, 18 August 1998, p. 6. 31. One wonders at the sense of irony in the title of the Chief Minister’s speech, ‘Reclaiming the Streets’, announcing the introduction of zero tolerance policing. 32. See also Keith (1993) and Khoury (1996).


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CHAPTER 5 TERROR, VIOLENCE AND THE ABUSE OF HUMAN RIGHTS

1. The author was a research consultant with the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. During hearings of the Inquiry in Cairns on 21 August 1996 several informants spoke confidentially of their experience during the removal of Aboriginal people from Mapoon. See also the three volumes of the Mapoon Story (Roberts 1975). 2. Statements made to counsel representing the community and summarised in a statement of claim (2 October 1990) on file with author. 3. Estimates of police numbers vary according to different sources. Evidence for what occurred during the raid is taken from newspaper reports, correspondence and statements on file with the author. Thanks to Valerie Kerruish for drawing my attention to the material. 4. Under Section 657a of the Queensland Criminal Code. Most jurisdictions have the provision for matters to be dismissed without penalty or recorded conviction, usually based on the good character of the defendant. It is sentencing outcome which is rarely afforded Indigenous people. 5. For comprehensive references to research on police violence and Indigenous people, see Cunneen (1990a); Blagg and Wilkie (1995); Cunneen and White (1995) and Chan (1997). 6. These included a youth who alleged that he had been kicked and hit with batons by five police in the cells at an outer metropolitan Sydney police station and then given a sock and told, ‘You may as well use it’. Another youth claimed to have been punched and hit with a baton in a south-western New South Wales police cell. He alleged that he was then told by a police officer to ‘rip the edge off a blanket if you want to hang yourself’. Another 16-year-old Aboriginal boy stated that while he was in a mid-north coast New South Wales police cell he was told by a sergeant, ‘If you don’t shut up, we’ll hang you’ (see Cunneen 1991a). 7. Quinlan SM, Crawford v Venardos, Donnelly, Ellis, Hanlen, Johnson and Henderson, Brisbane Magistrates Court, 24 February 1995 at 2, unreported. 8. See Condren v The Queen (1987) 28 A Crim R 261; Condren v


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12.

13.

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The Queen, appeal, High Court of Australia, 16 November 1989, unreported. District Court, Mt Isa, 9 November 1989. See Henry v Thompson (1989) Australian Torts Reports, 80–265 at 68 826. An earlier version of this discussion on torture and terror appeared in Cunneen (1996). See ‘Redfern TRG raid was invalid: judge’, Sydney Morning Herald, 23 March 1991, p. 7; also NSW Office of the Ombudsman (1991). This finding will always remain controversial. At the very least it should not be taken to mean that violence was not involved in a number of deaths. For instance, John Pat was assaulted by police prior to his death and David Gundy was shot dead by police. Findings and Recommendations of Mr Irvine Thomas Killeen, Coroner, Following an Inquest into the Cause and Circumstances Surrounding the Death of Craig Gable Sandy at Townsville Hospital on 17 October 1990, at pp. 7–9. See also HREOC (1993). Of course, the abuse of the human rights of Indigenous people extends far beyond the immediate issue of violence and includes systemic discrimination, the failure to ensure social, economic and cultural well-being and the failure to respect Indigenous rights to self-determination. Various articles and provisions of human rights instruments which cover these issues and to which Australia is a party include the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel or Degrading Human Treatment (CAT), and the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The United Nations Standard Minimum Rules for the Treatment of Prisoners and the Standard Minimum Rules for the Administration of Juvenile Justice are also relevant. See Cunneen and McDonald (1997b).

CHAPTER 6 POLICE CULTURE AND THE USE OF DISCRETION 1. For a summary of the arguments as to why full enforcement is an impossibility see Milte and Weber (1977, pp. 252–3). 2. There is not space here to discuss the development of ‘diversion’ as a key policy initiative in the operation of juvenile justice. See Cunneen and White (1995) and Borowksi and


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4.

5.

6. 7. 8. 9. 10.

11. 12.

13.


O’Connor (1997), for a discussion on the development of the principle of diversion for young people coming into the juvenile justice system. Criminalisation as a result of trivial offences was also commented upon by the International Commission of Jurists (ICJ 1990); the Anti-Discrimination Board (ADB 1982); the National Inquir y into Racist Violence (HREOC 1991); Amnesty International (1993); and ATSIC (Cunneen and McDonald 1997a). A recent empirical study of police charging patterns in Bourke shows the extent of criminalisation for street offences over a 13-year period (Alvarez 1998). For a comprehensive overview of research on this issue see Cunneen and White (1995, pp. 145–8) and NISATSIC (1997, pp. 513–16). Some of the following material was drawn from Cunneen (1997). For further discussion of the issues surrounding Indigenous young people and family group conferencing see Blagg (1997) and Blagg (1998). See White and Perrone (1997, pp. 50–4) for a summary of Fitzgerald’s views on police culture. See the Royal Commission reports by Wootten (1990b; 1990c; 1991c). See Wootten (1991b; 1990c). Duncan Graham, ‘Black police man quits ‘‘racist’’ force’, Sydney Morning Herald, 11 June 1994, p. 7. For Cop It Sweet and the subsequent amateur video see Chan (1997, pp. 169–74). For the Townsville incident, see the Sydney Morning Herald (24 March 1992, p. 8) and the Australian (24 March 1992, p. 2). See Finnane (1994); Hogg and Golder (1987); Chan (1997). See for instance, HREOC (1993) on the death of Craig Sandy in Mornington Island watch-house, and the Office of the Aboriginal and Torres Strait Islander Social Justice Commission (1996) for Aboriginal deaths in custody since the Royal Commission. See Johnston (1991a, vol. 5, pp. 87–8).

CHAPTER 7 POLICING INDIGENOUS WOMEN 1. For further discussion of these issues see the work of Indigenous women writers such as Atkinson (1990a); Payne (1990); Greer (1994) and Luchashenko (1997); as well as the Aus-


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2.

3.

4. 5. 6. 7.

8.

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tralian Law Reform Commission (1994) and the Criminal Justice Commission (1996). The Australian Law Reform Commission (1994, p. 120) noted that 39 Aboriginal women died in the Northern Territory during the same period that there were nine Aboriginal deaths in custody. The Queensland Criminal Justice Commission (1996, p. 94) noted that more Indigenous women died in three communities than all the deaths in custody in Queensland between 1980 and 1989. It is common for short-term prisoners to be held in maximum security for the simple reason that their length of sentence does not enable enough time for assessment and classification. Until a prisoner is assessed, the assumption is that they require maximum security. R v Kina, Court of Appeal, Queensland Supreme Court, 29 November 1993, No. 221 of 1993, unreported. R v Hickey, Supreme Court of New South Wales, 14 April 1992, unreported. R v Gilbert, Supreme Court of Western Australia, Scott J, 4 November 1993, No. 280 of 1993, unreported. Karen O’Rourke, Fay Yarrie, Barbara Tiers, Muriel Binks, Barbara Yarrie, Christine Jones, Nita Blankett, Dierdre Abigail, Faith Barnes, Joyce Egan and ‘Woman at Ceduna’ (name withheld). For more extensive discussion of the issues surrounding these deaths, see Kerley and Cunneen (1995). The details are drawn from a complaint made by the North Australian Aboriginal Legal Aid Service (NAALAS) and the findings of an Ombudsman’s Report (on file with the author). A lengthier discussion of this case can be found in Cunneen and McDonald (1997a, pp. 58–60).

CHAPTER 8 GOVERNANCE AND THE POLICING OF CONTESTED SPACE

1. Shane Stone, ‘Reclaiming the Streets—Zero Tolerance Policing and the Northern Territory’, Ministerial Statement to the Legislative Assembly, Darwin, 18 August 1998. 2. See for instance, Stenning (1984). 3. ‘Aborigines living in Townsville’s Hanran Park have been attacked with firebombs, stones and beer bottles thrown from passing cars in the past week. A number of the park people have been injured in the series of attacks, one of which was


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4. 5.

6. 7.


carried out by a car load of white people wearing what were thought to be balaclavas’ (The Independent, 13 December 1995, p. 1). Professor Basil James and Dr Muriel Soden (31 January 1996). Correspondence on file with author. Respectively, recommendations 188, 88, 62, 84, 87 and 104 of the Royal Commission into Aboriginal Deaths in Custody. See Johnston 1991a, vol. 5, pp. 111, 89, 83, 88 and 92. See Chapter 3 and also HREOC (1991, pp. 42–3). For an extensive discussion of these issues in Australia see Cunneen (1997); for discussion of the New Zealand context see Tauri and Morris (1997) and Tauri (1998).

CHAPTER 9 THE REFORM OF POLICING POLICIES 1. The precise nature of the command structure varies between jurisdictions. For a discussion of the Tactical Response Group in New South Wales, see Cunneen and Findlay (1990). 2. ‘Recommendation 214. The emphasis on the concept of community policing by Police Services in Australia is supported and greater emphasis should be placed on the involvement of Aboriginal communities, organisations and groups in devising appropriate procedures for the sensitive policing of public and private locations where it is known that substantial numbers of Aboriginal people gather or live’ (Johnston 1991a, vol. 5, p. 117). ‘Recommendation 215. That Police Services introduce procedures, in consultation with appropriate Aboriginal organisations, whereby negotiation will take place at the local level between Aboriginal communities and police concerning police activities affecting such communities, including: a. The methods of policing used, with particular reference to Police conduct perceived by the Aboriginal community as harassment or discrimination; b. Any problems perceived by Aboriginal people; and c. Any problems perceived by Police. Such negotiations must be with representative community organisations, not Aboriginal people selected by Police, and must be frank and open, and with a willingness to discuss issues notwithstanding the absence of formal complaints’ (Johnston 1991a, vol. 5, p. 117).


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3. For a discussion of the effect of the ABC documentary on New South Wales police see Chan (1997). 4. See Cunneen and McDonald (1999) for a discussion of the limitations of program evaluations which rely simply on goal attainment and measures of performance indicators. 5. There was limited use of liaison officers in Redfern during the 1970s but this was never expanded as part of a systematic policy. See Cunneen (1990a) for a discussion of Redfern and Aboriginal–police liaison officers. 6. Most ‘designated’ Aboriginal and Torres Strait Islander communities in Queensland are covered by the Community Services (Aborigines) Act 1984 and the Community Services (Torres Strait Islanders) Act 1984. The legislation covering Mornington Island and Aurukun is the Local Government (Aboriginal Lands) Act 1978. 7. Quoted in HREOC (1992, p. 32). 8. These community justice initiatives include the Kowanyama and Palm Island Community Justice Groups in Queensland, the Community Justice Panels in Victoria, various night patrols in Western Australia and also Murri Watch (Queensland) and Tangentyere (Northern Territory). See Chapter 8 for further discussion of these programs. 9. Canberra Times, 7 December 1994, p. 9; the Australian, 7 December 1994, p. 4; Courier Mail, 7 December 1994, p. 1. 10. There were also challenges against individual investigations. In the John Pat case, Western Australian police officers unsuccessfully sought to prohibit the publication of the Royal Commission inquiry into the death in custody. Jurisdiction was also challenged by New South Wales police in the matter of David Gundy. It was argued that Gundy was not in custody when he was shot by members of the New South Wales police. The Full Bench of the Federal Court ruled, however, that he was in custody. While it is perhaps understandable that police might wish to challenge hearings into individual deaths from a concern over their own possible criminal or civil liability, the other challenges into the broader issues which the Royal Commission sought to address seem nothing more than obstructionist.


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CHAPTER 10 POLICING AND POSTCOLONIAL SELF-DETERMINATION 1. The decision of the United States Supreme Court in relation to remnant Indian sovereignty and their status as ‘domestic dependent nations’ was Marshall CJ in Cherokee Nation v State of Georgia 1831. See also Marshall’s judgment in Worcester v Georgia 1832. For discussion of legal recognition of residual powers of self-government among Indigenous peoples in north America see Anaya (1996, pp. 16–18); Reynolds (1996, pp. 124–35). 2. See Coe v Commonwealth (1993) 118 ALR 193; and Walker v New South Wales (1994) 126 ALR 321. 3. Quoted by Hewett J ‘Indonesia: US Speaks Canberra Silent’, Sydney Morning Herald, 1 February 1997, p. 17. 4. Quayle & Ors v State of New South Wales & Anor (1995) Australian Torts Reports 81–367. 5. ‘Recommendation 188. That Governments negotiate with appropriate Aboriginal organisations and communities to determine guidelines as to the procedures and processes which should be followed to ensure that the self determination principle is applied in the design and implementation of any policy or program or the substantial modification of any policy or program which will particularly affect Aboriginal people’ (Johnston 1991a, vol. 5, p. 111). 6. See Land Rights News, August 1993. Reynolds also extensively cites the Convention’s statement concerning Aboriginal selfgovernment (1996, pp. 141–5).


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Strang, H., 1992, Homicide in Australia 1990–1991, Australian Institute of Criminology, Canberra. Stubbs, J. and Tolmie, J., 1994, ‘Battered Women Syndrome in Australia: A Challenge to Gender Bias in the Law?’, in J. Stubbs (ed.), Women, Male Violence and the Law, Institute of Criminology, Sydney. Stubbs, J., Travaglia, J., Inge, L., Cunneen, C. and Chan, C., 1996, Cross-Cultural Awareness for the Judiciary, Australian Institute of Judicial Administration, Melbourne. Sturma, M., 1983, Vice in a Vicious Society, University of Queensland Press, Brisbane. ——, 1987, ‘Policing the Criminal Frontier in Mid-Nineteenth Century New South Wales’, in M. Finnane (ed.), Policing in Australia. Historical Perspectives, University of New South Wales Press, Sydney. Sumner, C., (ed.), (1982), Crime, Justice and Underdevelopment, Heinemann, London. ——, 1990, Censure, Politics and Criminal Justice, Open University Press, Milton Keynes. Swanton, B. (ed.), 1984, Aborigines and Criminal Justice, Australian Institute of Criminology, Canberra. Sykes, R., 1989, Black Majority, Hudson, Melbourne. Tauri, J., 1998, ‘Family Group Conferencing: A Case Study of the Indigenisation of New Zealand’s Justice System’, Current Issues in Criminal Justice, vol. 10, no. 2, pp. 168–82. Tauri, J. and Morris, A., 1997, ‘Re-Forming Justice: The Potential of Maori Processes’, Australian and New Zealand Journal of Criminology, vol. 30, no. 2, August 1997, pp. 149–67. Taussig, M., 1987, Shamanism, Colonialism and the Wild Man. A Study in Terror and Healing, University of Chicago Press, Chicago. Trigger, D., 1992, Whitefella Comin’, Cambridge University Press, Melbourne. Tyler, W., 1998, ‘Race, Crime and Region: The Socio-Spatial Dynamics of Aboriginal Offending’, Journal of Sociology, vol. 34, no. 2, pp. 4–21. ——, 1999, ‘Aboriginal Criminology and the Postmodern Condition: From Anomie to Anomaly’, Australian and New Zealand Journal of Criminology, vol. 32, no. 2, pp. 209–21. US Department of State, 1999, Human Rights Practices for 1998, Australia Country Report, http://www.usis.usemb.se/human/ human1998/australi.html, accessed 15/09/99. Vinson, T., 1998, Comparison of the Sentencing of Indigenous and


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Non-Indigenous Prisoners in New South Wales, Uniya Jesuit Social Justice Centre, Sydney. Walker, J., 1987, ‘Prison Cells with Revolving Doors: A Judicial or Societal Problem’, in K. Hazlehurst (ed.), Ivory Scales, University of New South Wales Press, Sydney. Walker, J. and McDonald, D., 1995, ‘The Over-representation of Indigenous people in Custody in Australia’, Trends and Issues in Crime and Criminal Justice, no. 47, Australian Institute of Criminology, Canberra. Watson, L., 1989, ‘Our Children: Part of the Past, Present, and Providing a Vision for the Future. A Murri Perspective’, Australian Child and Family Welfare, August 1989. Wearne, H., 1980, A Clash of Cultures: Queensland Aboriginal Policy 1824–1980, Uniting Church, Brisbane. White, J., 1997, ‘Power/Knowledge and Public Space: Policing the ‘‘Aboriginal Towns’’ ’, Australian and New Zealand Journal of Criminology, vol. 30, no. 3, pp. 275–91. White, R., 1999, ‘Negotiating Young People’s Use of Public Space’, Unpublished report to the National Crime Prevention Unit, Commonwealth Attorney-General’s Department, Canberra. White, R. and Perrone, S., 1997, Crime and Social Control. An Introduction, Oxford University Press, Melbourne. Wilkie, M., 1991, Aboriginal Justice Programs in Western Australia, Research Report No. 5, Crime Research Centre, University of Western Australia, Perth. Williams, N., 1987, Two Laws, Managing Disputes in a Contemporary Aboriginal Community, Australian Institute of Aboriginal Studies, Canberra. Wilson, J.Q. and Kelling, G., 1982, ‘Broken Windows’, The Atlantic Monthly, March 1982, pp. 29–38. Wootten, H., 1974, ‘Aboriginal Legal Services’, in G. Nettheim (ed.), Aborigines, Human Rights and the Law, Australian and New Zealand Book Company, Sydney. ——, 1990a, Report of Inquiry into the Death of Clarence Alec Nean, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1990b, Report of Inquiry into the Death of Mark Wayne Revell, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1990c, Report of Inquiry into the Death of Bruce Thomas Leslie, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. M


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——, 1990d, Report of Inquiry into the Death of Paul Lawrence Kearney, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1991a, Regional Report of Inquiry in New South Wales, Victoria and Tasmania, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1991b, Report of Inquiry into the Death of David John Gundy, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1991c, Report of the Inquiry into the Death of Lloyd James Boney, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1991d, Report of Inquiry into the Death of Shane Kenneth Atkinson, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1991e, Report of Inquiry into the Death of Mark Anthony Quayle, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1991f, ‘99 Reasons . . . The Royal Commission into Black Deaths in Custody’, Polemic, vol. 2, no. 3, pp. 124–8. Wundersitz, J., 1979, ‘A Study of White Attitudes Towards Aborigines in the Maitland and Port Victoria District of Central Yorke Peninsula’, Unpublished MA thesis, University of Adelaide, Adelaide. ——, 1996, The South Australian Juvenile Justice System. A Review of Its Operation, Office of Crime Statistics, Adelaide. Wyvill, L., 1989, Report of the Inquiry into the Death of Alistair Riversleigh, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1990, Report of the Inquiry into the Death of Charlie Kulla Kulla, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. ——, 1991, Regional Report of Inquiry in Queensland, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra. Yazzie, R. and Zion, J., 1996, ‘Navajo Restorative Justice: The Law of Equality and Justice’, in B. Galaway and J. Hudson (eds), Restorative Justice: International Perspectives, Criminal Justice Press, Monsey. Youth Justice Coalition, 1990, Kids in Justice, NSW Law Foundation, Sydney.


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Note: (n) refers to endnote reference. A v Australia, 235 Aboriginal and Torres Strait Islander Commission (ATSIC), 12, 145, 221, 234 Constitutional reform goals, 246–7 right to self-determination and, 240–2 Aboriginal and Torres Strait Islander Social Justice Commission, 12, 222–4, 234, 242 Aboriginal–Australian Fellowship, 81–2, 105 Aboriginal Client Services Consultant (NSW), 215 Aboriginal Community Liaison Officers (ACLOs), 209, 216–19 ad hoc implementation policy of, 225–6 Aboriginal Community Police, 219–21 Aboriginal crime as a sociopolitical construct, 5 Aboriginal Justice Advisory Committee, 221–2 Aboriginal Justice Agreements, 221–3 Aboriginal Legal Service (ALS), 82, 105, 223, 236 Aboriginal people, 66 alcohol abuse statistics, 19–20 as a ‘criminal problem’, 91 as British subjects, 50–2, 56, 62

colonial ‘dispersion’ of, 57–8, 257–8 (n. 11) Darwinian theory of, 63 fear of police, 108 massacre of, 3, 5, 43, 53–5, 77 protection legislation controlling, 64, 68, 73–4 risk of extinction, 63 see also child removal; Indigenous people Aboriginal–police relations, 1–4, 49, 226–7 (1960–1980), 81–4 family group conferencing and, 141–2, 201–3 liaison officers, 177 police contact statistics, 18–21, 256–7 (n. 2) racist violence and, 112 reforms to improve, 209–13 see also colonial policing; over-policing; reform initiatives Aboriginal Policy Statements, 210–11, 225 Aboriginal political movement, 81–2, 105 Aboriginal reserves, 67, 73–4, 80–1 Bourke (NSW), 182–3 Aboriginal Strategic Plans, 211–13, 225, 227 Aboriginal women’s legal centre, 178 Aboriginality racist constructs of, 60–1, 63, 78, 81, 100–1, 128

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United Nations protection of, 246 Aboriginals Preservation and Protection Act 1939 (Qld), 67–8 Aborigines and Torres Strait Islanders Affairs Act 1965 (Qld), 73–4, 80 Aborigines Protection Act 1909 (NSW), 63, 66–7 Aborigines Protection Board, 66–7, 75 Act to Provide for the Protection and Management of the Aboriginal Natives of Victoria 1869, 63 Acts/Codes/Ordinances Act to Provide for the Protection and Management of the Aboriginal Natives of Victoria 1869, 63 Bushranging Act 1834, 77 Children (Protection and Parental Responsibility) Act 1997, 33 Crimes (Torture) Act 1988, 117–18 Criminal Code (NT), 80 Crown Lands Unauthorized Occupation Act 1839 (NSW), 47 Indian Child Welfare Act 1978 (US), 244 Indigenous Peoples Rights Act 1997 (Philippines), 244–5 Intoxicated Persons Act 1979, 83, 259 (n. 7) Juvenile Justice Legislation Amendment Act 1996 (Qld), 140 Native Title Act 1993, 234 Native Welfare Act 1963 (WA), 80 Police Act 1833, 77 Social Services Consolidation Act 1947 (Cth), 73 Social Welfare Ordinance (NT, 1964), 73 Summary Offences Act 1996 (NT), 103 Summary Offences Act 1998 (NSW), 261 (n. 25)

The Aborigines Act 1971 (Qld), 80 The Torres Strait Islanders Act 1971 (Qld), 80 Vagrancy Act 1835, 77 Welfare Ordinance (NT, 1953), 73 Young Offenders Act 1993 (SA), 141 Amnesty International, 118 criminal over-representation finding, 233 deaths in custody and, 127 Anti-Discrimination Board, 91 Aboriginal reserve findings, 182–3 street offence survey, 93 Armstrong, Daphne (death in custody), 172 arrest, 154, 212, 223–4 police discretion and, 31, 137–8 rates, 20–1 assault see violence assimilation, 7–8, 73–5, 254 (n. 6) Atkinson, Judy, 161 Australia as a nation-state, 6–7 Australian Aboriginal Progressive Association (AAPA), 75 authoritative/institutional resistance, 42–3, 191–3 autonomy, 221–3 see also self-determination bail, 33–4, 94, 138–9 Barnes, Faith (death in custody), 173 Basedow, Herbert, 64 Binks, Muriel (death in custody), 173 Black Wars, 48, 60–1 Blankett, Nita (death in custody), 171, 173 Boney, Lloyd (death in custody), 98, 144 border police (colonial), 52–3 Bourke (NSW) Aboriginal reserve, 182 International Commission of Jurists report, 187–8


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police presence, 86–7, 98 resource allocation, 89 street offence charges (examples), 96 Braddy, Paul, 225 Brewarrina (NSW), 71, 87, 98–9, 184 Broome (WA), 87 Bushranging Act 1834, 77 Calder case (Canada), 247 Canadian Indigenous self-government, 245, 247 cases A v Australia, 235 Calder case (Canada), 247 compensation, 236–7 Condren v The Queen (1987), 116–17 Cooper v Stuart (1889), 51, 238 David Gundy, 121, 125, 144, 236–7, 267 (n. 10) deaths in custody, 124–5, 236 Gilbert case, 169 Henry v Thompson (1989), 117 Hickey case, 169 John Pat, 83, 267 (n. 10) Kina case, 168 Mabo (2), 11–12, 232, 236, 238 Minister for Immigration and Ethnic Affairs v Teoh, 236 Murrell case (1836), 4, 51, 229, 238 Pinkenba Incident (Qld), 114–15 Rhonda Collard, 101 Toonen case, 235 Tuckiar v The King (1934), 159 Wik Peoples v State of Queensland, 47, 52, 256 (n. 1) cautioning (police), 135–7, 154, 212 Centre for Victims Of Torture and Trauma, 123–4 child-rearing practices, 38–9, 43–4, 69, 160 child removal, 107–8, 171 apology for, 225 criminogenic results of, 43–4

gender specific, 159 ‘protection’ legislation and, 68–70 Children (Protection and Parental Responsibility) Act 1997, 33 citizenship, 7, 50–2, 56, 62, 185, 229, 251 ‘differential’, 252 legislation denying rights of, 65, 67–8, 71, 75, 231–2, 234 ‘code of silence’ (police), 144 Codes see Acts/Codes/Ordinances Collard, Rhonda, 101 Collard, Sergeant, 145 colonial policing, 45–9, 75–9 Aboriginal ‘dispersion’, 57–8, 257–8 (n. 11) controlling Aboriginal movement, 71–2, 78, 181 controlling money/rations, 68, 73 depoliticising, 60–1 gender specific, 157–60 legislation, 48–9 military style of, 49–50, 62 native police, 48, 53, 55–60 paramilitary functions, 53–5, 75 ‘protection’ legislation, 62–6, 68–70 suspension of law, 60, 70, 76 see also child removal colonisation, 3–6, 37, 43–5, 251 child separation policy, 43, 68–70 disrupting Indigenous social patterns, 39 native title and, 232, 238–9 practices, 7–8, 43 socioeconomic disadvantage caused by, 42 Commonwealth/State Native Welfare Conference (1937), 7, 254 (n. 6) community, 185–6, 226 as an institution, 7 Indigenous self-justice, 161, 177–8, 193–4, 197–8 Indigenous position within, 152–3 police intervention into


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Indigenous, 85–6, 92–3, 134–5, 171 resistance to non-Indigenous, 42–3, 191 social order within the, 185–9 community-based reform, 226–7 Aboriginal Community Liaison Officers (ACLOs), 216–19, 225–6 Aboriginal Community Police, 219–21 custody by Indigenous people, 194 indigenisation and, 227–8 justice initiatives, 222, 267 (n. 8) Indigenous community justice groups, 193–8 community policing, 205, 224, 225 consultative committees, 207–8 negotiation of, 208–9, 266 (n. 2) compensation, 236–7 Condren, Kelvin, 116–17 Coniston massacre, 55, 77 Constitutional reform, 246–7 regional agreements and, 247–8 Convention Against Torture and Other Cruel or Degrading Human Treatment (CAT), 117 Convention for the Elimination of Discrimination Against Women (CEDAW), 178–9 Convention on the Elimination of All Forms of Racial Discrimination (CERD), 129, 154–5, 234 Convention on the Rights of the Child (CROC), 138, 154, 233–4 Cook, Cecil, 64, 69 Cooper v Stuart (1889), 51, 238 Cop it Sweet (ABC documentary), 147, 149, 210 Council for Aboriginal Reconciliation, 12 crime (definitions of), 5 Crimes (Torture) Act 1988, 117–18 Criminal Code (NT), 80 criminal charges and police practices, 29–30

cautioning, 135–7 denying human rights, 154–6 discretion, 14, 30–2, 44, 130–2, 144, 154 intervention, 85–6, 92–3, 134–5 right to bail, 138–9 young people and, 132–3 see also police culture; police interrogation criminal justice system, 2, 4, 189–90 criminalising Indigenous people, 8–9, 17–18, 134, 152, 155, 230–1 failing Indigenous women, 169–70 indigenisation of the, 227 sanction of last resort, 21, 255 (n. 3) see also Indigenous criminal over-representation criminality, 116, 181, 185 colonising effects of, 8–9 linked to politics/power, 5 criminological theory, 9–10 Crown Lands Unauthorized Occupation Act 1839 (NSW), 47 culture difference causing discrimination, 38–40 Indigenous resistance to non-Indigenous, 192 influence upon criminal over-representation, 38–9 occupational, 150–2, 156 policing Indigenous, 91–3 reform of police, 211 United Nations protection of Indigenous, 245–6 see also police culture custody by Indigenous people, 194 intoxication in public custody statistics, 19–20, 260 (n. 17) National Police Custody Surveys, 18 protective custody case study, 173–6 protective, 18–20, 254–5 (n. 1) see also deaths in custody


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Darwinian theory of Indigenous people, 63 deaths in custody, 84, 98, 105, 126–7, 153–4 Aboriginal Community Police and, 220 Amnesty International and, 127 compensation cases, 236–7 duty of care and, 106, 124 Indigenous Summit on, 221–2 Ministerial Summit on, 222–3 of Indigenous women, 170–3 police discretion and, 134–5 police untruthfulness, 144 public order offences and, 94–5, 170–1, 260 (n. 17) see also Royal Commission into Aboriginal Deaths in Custody Declaration on the Elimination of Violence Against Women (United Nations), 179 decolonisation, 3, 239–40, 250 ‘deep colonising’, 8–9 delinquent stereotyping, 150–1 deprivation of liberty, 21, 133, 250 child removal and, 70 designated drinking areas, 184–5 Dillon, Col, 145–6 discretion see police discretion discrimination cultural difference causing, 38–40 labelling Indigenous people, 64, 68 right to bail and, 33–4 see also over-policing; racism discriminatory legislation, 7, 32–3, 80, 254 (n. 5) see also ‘protection’ legislation ‘dispersion’ (colonial Aboriginal), 57–8, 257–8 (n. 11) dispossession, 47–8, 181, 192 Indigenous fight against, 61 legal aspect of, 50–2 policing role in, 49–50 terror as a tactic of, 60 see also sovereignty diversion from criminal charges, 33, 154

arrest as a last resort, 137–8, 224 family group conferencing, 130, 139–43, 201–3 police cautioning, 135–7, 212 Dodson, Michael, 241 ‘dog licences’, 68 ‘dog tags’, 64 domestic violence (against Indigenous women), 157–8, 161–2 drunkenness see intoxication in public Dubbo (NSW), 99, 186 duty of care, 106, 124–5, 144 educational reform, 176–7, 213–14 Egan, Joyce, (death in custody) 170–1 ethnicity, 148 see also racial stereotyping; racism false imprisonment, 116–17, 127 family group conferencing, 130, 139–43, 201–3 Fitzgerald Inquiry, 143–5 Foley, Gary, 82 Forrest River massacre, 55, 76–7 gender specifics Aboriginal–police liaison officers, 177 arrest rates, 20–1 child removal, 159 colonial policing strategy, 158–60 imprisonment rates, 21 under-policing female crime, 161, 164 see also Indigenous women genocide, 3–5, 43 Aboriginal ‘dispersion’, 57–8, 257–8 (n. 11) massacres, 53–5, 76–7 Gilbert, Kevin, 1 Gilbert, Mavis, 169 Gipps, Governor, 54 governance, 11–12, 116, 127, 203–4


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300


family group conferencing, 202–3 Indigenous resistance to, 191–3, 252 Indigenous-initiated, 193–8 jurisdiction and, 4, 189–91, 197, 257 (n. 5) Kalkaringi Statement, 243 native American self-governance, 244 policing public order and, 149–50 see also self-determination Gundy, David, 121, 125, 144, 236–7, 267 (n. 10) Henry, Trevor, 117 Hickey, Cynthia, 169 High Court decisions (human rights), 236 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, 146, 219, 223–5 Indigenous self-determination and, 240 Howard Government (self-determination stance), 241–2 human rights, 154–6, 233, 263 (n. 14) assimilation denying, 73–5 child removal and, 70 duty of care, 106, 124–5, 144 High Court decisions and, 236 international law, 128–9, 235, 263 (n. 15) police tactics denying, 127–9 ‘protection’ legislation denying, 65, 67–8 self-determination and, 2–3, 240 United Nations findings, 233–4 violence against women denying, 178–9 Human Rights and Equal Opportunity Commission (HREOC), 85, 162, 177

Human Rights (Sexual Conduct) Act 1994, 235 Hunter, Governor, 52 ill-treatment, 118–21 imprisonment, 189 Aboriginal reserves as, 67 as protective custody, 19–20 as routine practice, 153–4 duty of care and, 106, 124–5, 144 false, 116–17, 127 of Indigenous women, 166–70 protective custody case study, 173–6 rates, 21–2, 255 (n. 3) sentencing and, 34–6 suicide and, 113, 262 (n. 6) Indian Child Welfare Act 1978 (US), 244 indigenisation, 225, 227–8 tokenism as an example of, 250 Indigenous criminal over-representation, 2, 9, 12–13, 24–5, 43–5, 83, 91, 150 arrest rates, 20–1 authoritative/institutional resistance, 42–3 cultural influence upon, 38–9 imprisonment rates, 21–2, 255 (n. 3) juvenile crime rates, 8–9, 23–4 marginalisation and, 40–2 offence patterns and, 25–8 police custody, 18–19, 254–5 (n. 1) reoffending and, 28 socioeconomic disadvantage influencing, 40 spatial factors influencing, 36–7 zero-tolerance policing enhancing, 103 see also diversion from criminal charges; police discretion Indigenous-initiated policing reform, 193–6 jurisdiction, 197–8 outcomes, 196–8 see also reform; reform initiatives


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Indigenous people Anglo-Australian jurisdiction over, 4 child-rearing practices, 38–9, 43–4, 69, 160 criminalisation of, 8–9, 17–18, 134, 152, 155, 230, 251 definitions of, 6, 230–2 dispute resolution, 197–8 governance, 11–12, 116, 127, 193–8, 203–4 interracial relationship control, 64, 66–7 labelling of, 64, 68 police contact statistics, 18–20 resistance to policing, 42–3, 60–1, 81, 191–3, 252 surveillance of, 7–9, 74, 83–6 see also Indigenous women; Indigenous youth; over-policing Indigenous Peoples Rights Act 1997 (Philippines), 244–5 Indigenous police, 227 colonial, 48, 53, 55–60 racism against, 145–6 recruitment strategies, 214–15 Indigenous–police relations, 1–4, 193 1960–1980, 81–4 colonial processes forming, 49 contact statistics, 18–21, 256 (n. 2) female, 163–4, 169, 171, 173, 176–8 see also colonial policing; over-policing; police culture; reform Indigenous Summit, 221–2 Indigenous women, 15, 72, 157–8, 178–9 case study, 173–6 colonial policing of, 158–60 death in custody, 170–3 homicide by, 168–9 homicide of, 158, 265 (n. 2) imprisonment and, 166–70 intervention into the lives of, 171 policing strategy, 173

protection orders, 169 public order offences and, 165–6 rearrest rates, 20 reasons for imprisonment, 166–7 reforming policing of, 176–8 sexual assault by police, 163 under-policing, 161, 164, 169 violence against, 160–5 violent offences by, 166 Indigenous youth, 233 arrest as a last resort, 137–8 bail refusal, 138–9 crime rates, 8–9, 23–4 delinquent stereotyping, 150–1 differential treatment of, 136 Pinkenba Incident, 114–15 police cautioning of, 135–7 police discretion affecting, 132–4, 148 police violence against, 113–16, 119–20, 262 (n. 6) institutional racism, 91, 95, 100, 128, 147, 152 House of Representatives Standing Committee finding, 224–5 institutionalisation, 7, 171 Aboriginal reserves and, 67, 73–4, 80–1, 182–3 International Commission of Jurists (ICJ), 87, 93–4, 187–8 International Convention on Economic, Social and Cultural Rights (ICESCR), 240 International Covenant on Civil and Political Rights (ICCPR), 234–5, 240 international Indigenous self-determination, 16, 244–8 interracial relationship control, 64, 66–7 Intoxicated Persons Act 1979, 83, 259 (n. 7) intoxication in public, 40, 74, 154–5 curfew policing and, 82 custody statistics, 19–20, 260 (n. 17)


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302


designated drinking areas, 184–5 legislation, 32, 83, 259 (n. 7) over-policing of, 94 women and, 165 Inuit people self-government (Canada), 245 Johnston, Elliot, 225 Jones, Christine (death in custody), 171, 173 Jundamarra (armed revolt), 59 jurisdiction governance and, 4, 189–91, 197, 257 (n. 5) Indigenous-initiated policing reform, 197–8 Royal Commission into Deaths in Custody, 225, 267 (n. 10) post Mabo (No 2), 232 self-determination and Indigenous, 239, 248 spatiality and, 189–91, 197 Jurotte, Senior Sergeant Ken, 146 justice initiatives, 193–6 Aboriginal Justice Agreements, 221–3 outcomes, 196–8, 223–4 see also reform initiatives Justice Under Scrutiny, 224–5 juvenile criminalisation (colonial), 8–9, 42 detention, 23–4 police discretion and, 31 public order offences and, 27–8 recidivism, 28 sentencing trends and, 35–6 welfare alternatives, 33 see also Indigenous youth Juvenile Justice Legislation Amendment Act 1996 (Qld), 140 Kalkaringi Statement, 243 Kamien, Max, 81–2 Kina, Robyn, 168–9 Kulla Kulla, Charlie (death in custody), 94–5, 153–4 Lake Tyres Aboriginal reserve, 67 land rights, 232, 238–9, 247

Laverton (Skull Creek) incident (WA), 83 law (the) alternatives to, 33, 133 colonial policing, 48–9 colonial suspension of, 60, 70 dispossession and, 50–2 police ignoring, 144 see also diversion from criminal charges legislation discriminatory, 7, 32–3, 80, 254 (n. 5) ‘protection’, 62–5, 68–70, 73–4, 78 ‘street offences’, 80, 82–3 see also Acts/Codes/Ordinances Leslie, Bruce (death in custody), 144 Lowe, Lieutenant, 51 Mabo (2), 11–12, 232, 236, 238 Macintosh, Cheeky, 98 Macquarie, Governor, 52 Mapoon settlement, Cape York (Qld), 109–10 marginalisation, 40–2, 250 of police, 143–4 massacres, 53–5 Coniston, 55, 77 Forrest River, 55, 76–7 Waterloo Creek, 53–4 see also genocide, 3–5, 43 Max Stuart case (SA), 74 media Cop it Sweet (ABC documentary), 147, 149, 210 reinforcing stereotyping, 82 Minister for Immigration and Ethnic Affairs v Teoh, 236 Ministerial Summit on Indigenous Deaths in Custody, 222–3 miscarriage of justice, 116–17, 127 Moree (NSW), 98 Mornington Island (Qld), 162, 177, 198 mounted police, 53, 56, 58–60 Murrell case (1836), 4, 51, 229, 238


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Murri Watch initiative (Qld), 194 National Aboriginal and Torres Strait Islander Survey (NATSIS), 20 National Commitment to Improved Outcomes in the Delivery of Programs, 221 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (NISATSIC), 16, 40, 107, 159, 225 genocide finding, 5, 43 self-determination recommendation, 242 suspension of law finding, 70 National Inquiry into Racist Violence, 85, 87, 112 police intervention and, 92–3 Tactical Response Group finding, 99–100 nation-building, 3, 6 criminalisation as part of, 10 National Police Custody Surveys, 18 National Prison Census, 21–2 native American self-governance, 244 native police (colonial), 48, 53, 55–60 Native Title Act 1993, 234 native title, 232, 238–9, 247 Native Welfare Act 1963 (WA), 80 Native Welfare Conference, 7, 254 (n. 6) Navajo self-governance (US), 244 neocolonialism, 7–8, 228–9, 251 criminal justice administration and, 230–2 New South Wales arrest rates, 20 family group conferencing, 141 imprisonment rates, 21–2 Native Mounted Police, 56, 60 over-policing in, 86–7, 91 police cautioning, 135–6 police resource allocation, 89

‘protection’ legislation, 63, 66–7 public order offences, 97 Redfern, 81–3, 99–100, 122, 147, 216 reform initiatives, 210–12, 215 restriction of movement legislation, 71 sentencing trends, 36 New South Wales Council for Civil Liberties, 82 non-Indigenous people alcohol abuse statistics, 19 arrest rates, 20 child removal requirements, 70 colonial policing of, 56 crimes against women, 160 custody statistics, 18–19 imprisonment rates, 21–2 juvenile detention rates, 24 offending patterns, 27 police discretion and, 31, 135–6 recidivism, 28 sentencing, 34 Norfolk Island self-government, 247 North Australian Aboriginal Legal Aid Service (NAALAS) case, 173–6, 265 (n. 8) Northern Territory assimilation legislation, 73 custody statistics, 19–20 imprisonment rates, 22 Indigenous self-determination, 242–3 ‘protection’ legislation, 63, 66 public order offence rates, 27 recidivism rates, 28 restriction of movement legislation, 71 sentencing rates, 35 summons success rates, 31 zero-tolerance policing, 103 Northern Territory Aboriginal Constitutional Convention, 249 Nunavut Territory (Canada), 245 Nunn, Major, 53–4 offending patterns, 26–8


303

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304


offending statistics, 25–6 offensive language, 29, 86, 95–6, 170–1 O’Gorman, John, 22 Operations and Crime Reviews (OCRs), 213 Ordinances see Acts/Codes/Ordinances O’Shane, Pat, 74 O’Sullivan, Jim, 224–5 Optional Protocol of the ICCPR, 235 over-policing, 13–14, 29–30, 104 of Indigenous culture/society, 92–3 Indigenous women and, 161 police intervention, 85–6, 97, 134–5, 166 police presence, 86–8, 91 resource allocation, 88–91 of street offences, 93–7 see also paramilitary policing paramilitary policing, 206–7 colonial, 49–50, 53–5, 62, 75 riot gear, 101–2 specialist squads, 97–101 terror/trauma strategy, 121–4 parental rights, 70 Parry-Okeden, William, 59 pastoral leases, 47, 52 Pat, John (death in custody), 83, 267 (n. 10) Peate, Alf, 100 personal relationship regulations, 64, 66–7 Philippines Indigenous self-determination, 244–5 Phillip, Governor, 52 Pickering, Ted, 99 Pinkenba Incident, 114–15 Police Act 1833, 77 police as assault victims, 27 clear-up rates, 30 demographics, 145 fear of, 107 Indigenous, 48, 53, 55–60, 145–6, 214–15, 227 investigating police, 144

power abuse, 33, 82, 86, 259 (n. 4) public order offences against, 29 police culture, 14–15, 107, 109, 130, 143–4 criminalising Indigenous people, 152–3 denying human rights, 155–6 Indigenous police racism, 145–6 NSW Ombudsman finding, 149 occupational cause of, 150–2, 156 racism and, 146–50, 152 social composition, 145 police custody, 18, 224, 254–5 (n. 1) statistics, 18–19, 165 see also deaths in custody; imprisonment police discretion, 14, 30–2, 44, 130, 144, 154 arrest and, 137–8 cautioning, 135–7 defined, 130–2 denying human rights, 154–6 family group conferencing, 139–43, 202 granting bail, 138–9 intervention and, 85–6, 92–3, 134–5 young people and, 132–4, 148 police interrogation, 74, 116, 127 torture and, 119–21 police policy advisory units, 215 policing, 1–3, 5–6 colonial forces, 53 complaints about, 81–4 decolonialising, 10, 239–40, 250 Indigenous cultural/social, 91–3, 171 Indigenous people contact statistics, 18–21 Indigenous women, 15, 20, 72, 158–65, 169, 171, 173, 176–8 liberal approach to, 17, 106 use of the law, 32–4 zero-tolerance, 14, 102–4 see also colonial policing;


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305

INDEX

over-policing; paramilitary policing policing strategies, 8, 92 gender specific, 158–60, 173 in Redfern (NSW), 82–3 see also colonial policing; over-policing; paramilitary policing; terror (use of) policy Aboriginal Policy Statements, 210–11, 225 ad hoc implementation of reform, 225–6 child separation, 43, 68–70 community policing consultative committee, 207–8 criminal sanctions substituting social, 188–9 police advisory units, 215 self-determination, 268 (n. 5) postcolonialism, 6, 10 Post Traumatic Stress Disorder (PTSD), 123 poverty, 41, 43, 97 property offences, 20, 41 over-policing of, 29–30, 224 spatial influences upon, 36–7 property rights, 11–12 ‘protection’ legislation, 62–3, 78 causing racial segregation, 65 child removal and, 68–70 controlling money/rations, 68, 73–4 providing police power, 64 protection orders (for women), 169 protective custody, 19–20, 254–5 (n. 1) case study, 173–6 see also police custody public order control, 97–8, 102, 105, 181–2 criminal sanctions substituting social policy, 188–9 law and order meetings, 187–8 public order offences, 20, 27–8 curfews and, 82 deaths in custody and, 94–5, 170–1, 260 (n. 17)

discriminatory legislation and, 32–3 drunkenness, 19–20, 32, 40, 74, 82, 95 Indigenous women and, 165–6 offensive language, 29, 86, 95–7 over-policing of Indigenous, 85–6 police role in, 29, 93–4, 96–7, 149 Quayle, Mark (death in custody), 153, 236 Queensland Aboriginal Community Liaison Officers, 218–19 assimilation legislation, 73–4 custody statistics, 19 family group conferencing, 140–1 imprisonment rates, 22 Indigenous legislation (1970s), 80–1 Indigenous self-determination, 243–4 institutionalised racism finding, 224–5 Pinkenba Incident (Qld), 114–15 police cautioning, 137 police racism, 145–6 ‘protection’ legislation, 63, 65–8 reform initiatives, 194 Queensland Domestic Violence Task Force, 162 Queensland Native Mounted Police, 56, 58–9 racial stereotyping, 60–1, 76, 81–2, 101 delinquent, 150–1 police culture and, 148–9, 152 racism, 146 against Indigenous police, 145–6 constructs of Aboriginality, 60–1, 63, 78, 81 House of Representatives


305

140 × 215

306


Standing Committee finding, 224–5 institutionalised, 91, 95, 100, 128, 147, 152 NSW Ombudsman finding, 149 over-policing and, 91 United Nations findings, 233–4 recidivism, 28 reconciliation, 12 Redfern (NSW), 81–3 Aboriginal Community Liaison Officers, 216 media reporting of, 147 TRG raid on, 99–100, 122 referendum (1967), 7 reform ad hoc policy, 225–6 commitment to, 223–4 community-based, 226–7 Constitutional, 246–7 indigenisation and, 227–8 Indigenous Summit on, 221 Indigenous women’s protection, 177–8 Ministerial Summit on, 222–3 outcomes, 196–8, 223–8 victim support, 212 reform initiatives, 205–6, 225–6 Aboriginal Community Liaison Officers (ACLOs), 216–19 Aboriginal Community Police, 219–21 Aboriginal Justice Agreements, 221–3 Aboriginal Policy Statements, 210–11, 225 Aboriginal Strategic Plans, 211–13, 225, 227 custody by Indigenous people, 194 Indigenous community justice groups, 193–6 Indigenous police recruitment strategies, 214–15 police training, 177, 213–14 policing Indigenous women, 176–8 policy advisory units, 215 regional agreements, 247–8 resistance (Indigenous)

aiding self-determination, 193, 252 authoritative/institutional, 42–3, 191–3 to colonial policing, 60–1, 81 restriction of movement legislation, 71–2, 78, 181 Revell, Mark (death in custody), 144 rights citizenship, 65, 67–8, 71, 75, 231–2, 234 land, 232, 238–9, 247 of the child, 138, 154, 233–4 parental, 70 property, 11–12 to bail, 33–4 to self-determination, 229–30, 237, 239–42, 250 riot legislation, 99, 261 (n. 25) Riversleigh, Alistair (death in custody), 219–20 Roebourne (WA), 184 police presence, 88 policing complaints, 83–4 Rosalie RSL (Brisbane) police raid, 111 Royal Commission into Aboriginal Deaths in Custody, 1–2, 12, 40, 95, 171–2, 223 Aboriginal–police contact finding, 256 (n. 2) community policing recommendations, 208–9, 266 (n. 2) custody surveys, 18 defining Aboriginal Community Liaison Officers’ role, 217 duty of care findings, 124–5 Indigenous Summit on findings, 221–2 jurisdiction questioned, 225, 267 (n. 10) paramilitary police squad ruling, 101 police culture findings, 144 police discretion finding, 134 police violence findings, 13 public order offences and, 94


306

140 × 215

INDEX

resource allocation study, 89–90 right to bail finding, 33 self-determination recommendation, 241, 268 (n. 5) sanction of last resort, 21, 255 (n. 3) Sandy, Craig (death in custody), 220 self-determination, 2, 10, 15–16, 203–4, 239–41, 247–9 Aboriginal Justice Agreements and, 221–3 community-based policing and, 227 decolonisation linked to, 3 dispute resolution and, 197–8 family group conferencing and, 202–3 governance resistance and, 191–3, 252 Howard Government approach to, 241–2 international Indigenous, 244–9 Kalkaringi Statement, 243 right to, 229–30, 237, 239, 250 Royal Commission into Deaths in Custody recommendation, 241, 268 (n. 5) self-management distinct from, 240 United Nations protection of Indigenous rights to, 245–6 self-management, 240–2 sentencing trends, 34–6 settlement deinstitutionalisation, 7 sexual assault, 167–8, 188 by police, 163 case study, 173–6 Kina case, 168–9 Sexual Assault Referral Centre, 174–5 social order, 181–2 criminal sanctions for, 188–9 indigenisation and, 227–8 maintaining for community interest, 185–9

over-policing for, 86–8, 91, 93–7 Social Services Consolidation Act 1947 (Cth), 73 Social Welfare Ordinance (NT, 1964), 73 socioeconomic disadvantage, 40 marginalisation, 40–2 South Australia arrest rates, 20 custody statistics, 19 family group conferencing, 140 imprisonment rates, 21–2 police cautioning system, 137 sovereignty, 4, 11–12 extinguishment of Indigenous, 237–8 post Mabo (No 2), 232 rights to, 229–30, 236, 268 (n. 1) spatial separation, 185–9 spatiality, 15, 36–7, 180 Aboriginal reserves and, 183–4 designated drinking areas, 184–5 jurisdiction and, 189–91, 197 politics of, 186–9 public order control and, 181–2 tourism and, 184 Special Protection Group (SPG), 101 Special Weapons and Operations Squad (SWOS), 101 statistics arrest rates, 20 imprisonment rates, 21–2, 255 (n. 4) intoxication in public custody statistics, 19–20, 260 (n. 17) police cautioning, 135–7 police custody statistics, 19–20, 165 police harassment, 112–13 public order offence rates, 27–8 recidivism rates, 28 sentencing rates, 34–5 summons success rates, 31 Stolen Generation (the)


307

307

140 × 215

308


apology to, 225 criminogenic results of, 43–4 deaths in custody and, 171 forced child removal, 107–8, 171 gender specific child removal, 159 ‘protection’ legislation causing, 68–70 Stone, Shane, 103 ‘street offence’ legislation, 80, 82–3 see also public order offences Stuart, Max (SA case), 74 substance abuse, 41, 43 suicide, 113, 262 (n. 6) Summary Offences Act 1998 (NSW), 261 (n. 25) Summary Offences Act 1996 (NT), 103 summons (instead of arrest), 31, 33 surveillance, 8–9, 74, 83–4 of Indigenous women, 172–3 over-policing and, 85–6, 251 ‘protection’ legislation expanding, 62–6, 78–9 surveys/censuses Anti-Discrimination Board street offence survey, 93 attitudes to Indigenous people, 147–8 National Aboriginal and Torres Strait Islander Survey (NATSIS), 20 National Police Custody Surveys, 18–19 National Prison Census, 21–2 suspension of law (colonial), 60, 70 Swan Valley Nyungah community (WA), 101, 110–11 ‘symbolic assailant’, 150

Taskforce on Gender Bias (WA), 162 Tasmania martial law (1828), 52, 60 sexual discrimination law, 235 terra nullis, 232, 238 terror (use of), 14, 60, 108–9, 115–16 against communities, 109–11 against Indigenous youth, 113–15, 262 (n. 6) against individuals, 111–13 as a dispossession tactic, 60 Mapoon settlement, Cape York (Qld), 109–10 outcomes from, 121–4 Pinkenba Incident (Qld), 114–15 Rosalie RSL (Brisbane), 111 Swan Valley Nyungah community (WA), 101, 110–11 torture/ill-treatment as a, 118–21 The Aborigines Act 1971 (Qld), 80 The Torres Strait Islanders Act 1971 (Qld), 80 Through Black Eyes: A Handbook of Family Violence in Aboriginal and Torres Strait Islander Communities, 177 Tickner, Robert, 240–1 Tiers, Barbara (death in custody), 173 Toonen case, 235 Torres Strait Regional Authority, 247 torture, 117–21 see also terror (use of); violence tourism and public space, 184 Townsville (Qld), 188–9, 265–6 (n. 3) Tuckiar v The King (1934), 159

Tactical Response Group (TRG), 97–8, 101, 186 Brewarrina riots, 98–9 Redfern deployment, 99–100, 259 (n. 6) strategic use of terror, 121–3

under-policing of Indigenous women, 161–4 unemployment, 34, 40 United Nations Committee on the Elimination of Racial Discrimination, 233–4


308

140 × 215

INDEX

United Nations Committee on the Rights of the Child, 233 United Nations Declaration on the Elimination of Violence Against Women, 179 United Nations Draft Declaration on the Rights Of Indigenous Peoples, 16, 245–6 United Nations Working Group on Indigenous Peoples (WGIP), 244–5 Vagrancy Act 1835, 77 victim support reform, 212 Victoria imprisonment rates, 22 police cautioning, 136 Port Phillip Native Police Corps, 59 ‘protection’ legislation, 63 reform initiatives, 193–4, 213–15 violence, 127–9, 250 against Indigenous communities, 109–11 against Indigenous women, 160–5, 168–9, 178–9 against Indigenous youth, 113–15 against individuals, 111–13 causing miscarriages of justice, 116–17 colonial policing tactic, 60–1, 127 female offences and, 166 Indigenous women’s reform against, 177–8 Mapoon settlement, Cape York (Qld), 109–10 offending patterns of, 27 Pinkenba Incident (Qld), 114–15 police strategy of, 82–3, 92, 100, 106–9, 115–16 Rosalie RSL (Brisbane), 111 Swan Valley Nyungah community (WA), 101, 110–11 torture/ill-treatment as, 118–21 ‘violence of neglect’, 106, 124–5

Walgett (NSW), 87, 96, 184–5 Walker (matter of), 4 war of extermination, 50, 75–6 Indigenous resistance, 61, 76 military style of, 49–50, 62 native police, 48, 53, 55–60 paramilitary functions, 53–5 water police, 53 Waterloo Creek massacre, 53–4 Welfare Ordinance (NT, 1953), 73 welfare provisions, 33 Western Australia arrest rates, 20 citizenship, 68 custody statistics, 19–20 family group conferencing, 140 imprisonment rates, 21–2 Laverton (Skull Creek) incident, 83 native police, 58 over-policing, 86 police cautioning system, 136 police presence, 87–8 police racism, 145 police resource allocation, 89 police terror tactics, 110–11 public order offence rates, 28 recidivism rates, 28 reform initiatives, 194 restriction of movement legislation, 71 Roebourne (policing complaints), 83–4 sentencing rates, 34 TRG complaints, 101 Wheeler, Lieutenant, 57–8 ‘whistleblowing’, 146 ‘code of silence’, 144 Wik Peoples v State of Queensland, 47, 52, 256 (n. 1) Wilcannia (NSW), 86–7, 91, 107 routine imprisonment, 153 Wiluna (WA), 86 Wirringa Baiya (NSW), 178 Working Group on Indigenous Peoples (WGIP), 244–5 Wyvill, Lew, 225 Yarrie, Barbara (death in custody), 173


309

309

140 × 215

310


Yarrie, Fay (death in custody), 171, 173 Yolngu people dispute resolution, 197–8

York, Daniel, 134–5 Young Offenders Act 1993 (SA), 141 zero-tolerance policing, 14, 102–4


310

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Cyber-Conflict and Global Politics

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