Legacy of empire

The unequal administration of justice in Australia is hardly ancient history and goes a significant way to explaining the overrepresentation of Aboriginal Australians in custody today, writes Sheryn Omeri

Back in the day, when I was a very junior solicitor (advocate) at the Aboriginal Legal Service (ALS) in New South Wales (NSW), one of its most dedicated trial advocates, Greg Bond, told me of the terms of a plea in mitigation he had once delivered on behalf of an Aboriginal client. After recording the guilty plea and reading over the prosecution’s statement of facts, a surly stipendiary magistrate gave Greg an icy stare over his spectacles before asking: ‘Mr Bond, how does your client explain his behaviour?’ Clearing his throat and giving way to an ever-croaky yet somehow still inspiring voice, Greg said: ‘Well, your Honour, it all began 200 years ago when, for reasons outside their control, this land was stolen from his ancestors. His offending is the legacy of that injustice.’

While the ALS mandate was to keep Aboriginal people out of custody, Greg explained the obvious – that far from every bail application, plea in mitigation or severity appeal would succeed. What was important was that we, the lawyers, gave our all on behalf of our Aboriginal clients, consistently reminding courts of the history which had resulted in so many Aboriginal people being in the dock. That had begun with the taking of their land by violent force, as if by right, and was followed promptly by the supply of alcohol. Prior to colonisation, Aboriginal Australians had had no exposure to alcohol. It was supplied to them by colonisers deliberately as a means of weakening their resistance against the theft of their land and of pushing them more generally to the fringes of society. The legacy of this historical moment persists in the high rates of alcohol addiction and resultant violence and other criminal offending for which Aboriginal Australians are disproportionately imprisoned.

Greg made the point that what mattered to our clients was that there was ‘someone to talk up for them’ rather than, I inferred, over them, or about them pejoratively and ahistorically. That was how they had been treated since the First Fleet arrived in Sydney, in 1788, under the command of Britain’s Captain (and then Governor) Arthur Phillip who had been sent to establish a penal colony in NSW, regardless of what ‘the natives’ may have felt about this.

The former British Empire, of which a number of Australian States came to form part, has since been euphemistically recast as the Commonwealth. The preamble to the Commonwealth Charter refers to the ‘shared inheritance of language, culture and rule of law; and [its members being] bound together by shared history and tradition’ entirely glossing over the violent and paternalistic nature of such history and its persisting legacy still acutely felt by Australia’s Aboriginal population. The full history is, of course, beyond the scope of this brief article. It is, however, impressively captured in the documentary series First Australians, produced and directed by Rachel Perkins, daughter of well-known Aboriginal rights activist, Charlie Perkins. While history cannot be re-written, an understanding of it is vital to overcoming its enduring nefarious effects.

Unequal justice

Until a Federal referendum in 1967, the Australian Constitution, the founding document of the Commonwealth of Australia, specifically discriminated against Aboriginal Australians in two ways. It prevented the Federal legislature from making laws in respect of Aboriginal people, though the latter had power to do so in respect of the people of any other race. It therefore fell to the often racist State legislatures to enact laws concerning Aboriginal people who were left without any prospect of protection from the Federal government. Furthermore, s 127 of the Australian Constitution declared that: ‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted.’ Fortunately 90.77% of the Australian electorate voted for the first section to be amended and the second to be deleted in its entirety. This year marks only the 50th anniversary of the referendum.

Well into the 1970s, a lawful practice existed of forcibly removing Aboriginal children from the custody of their biological parents and placing them in children’s homes or with white families for no reason other than their race. Aboriginal people who were so removed came to be known as the Stolen Generations. It was to them that former Australian Prime Minister, Kevin Rudd offered an apology in 2008 which addressed both the injustice and its deliberateness: ‘… The uncomfortable truth for us all is that the parliaments of the nation, individually and collectively, enacted statutes and delegated authority under those statutes that made the forced removal of children on racial grounds fully lawful…’

Until 1992, when the High Court of Australia (its Supreme Court) handed down its judgment in the case of Mabo v Queensland (No. 2) (1992) 175 CLR 1, Australian land law had been based on the deliberately devised and perpetuated legal fiction of ‘terra nullius’ that is, prior to the arrival of British colonisers, Australia had belonged to no one. This was the legal foundation upon which the British claim to possession of Australia had been based. Of it, Deane and Gaudron JJ said (at [55]):

‘Inevitably, one is compelled to acknowledge the role played, in the dispossession and oppression of the Aborigines, by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all the lands of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositions provided a legal basis for and justification of the dispossession. They constituted the legal context of the acts done to enforce it and, while accepted, rendered unlawful acts done by the Aboriginal inhabitants to protect traditional occupation or use. The official endorsement, by administrative practice and in judgments of the courts, of those two propositions provided the environment in which the Aboriginal people of the continent came to be treated as a different and lower form of life whose very existence could be ignored for the purpose of determining the legal right to occupy and use their traditional homelands.’

In Mabo the High Court held that the common law of Australia recognised a form of native title to land such that pre-existing rights and interests in land survived colonisation. Where title had been extinguished after the enactment of the 1975 Federal Racial Discrimination Act, compensation was due and payable to its previous Aboriginal owners. For it not to be paid would have amounted to race discrimination. 2017 marks only the 25th anniversary of Mabo.

Shortly before the decision in Mabo was promulgated, the Royal Commission into Aboriginal Deaths in Custody published a report of its findings, in April 1991. This had its genesis in the 1980s, when there developed growing public concern that deaths of Aboriginal Australians held in prison were too common and poorly explained. On 10 August 1987, then Prime Minister of Australia, Bob Hawke announced a Royal Commission to investigate all deaths of Aboriginal inmates in custody between 1 January 1980 and 31 May 1989 (99 in total). The final report concluded that the 99 did not die at a greater rate than non-Aboriginal people. Instead, what was overwhelmingly different was the rate at which Aboriginal people came into custody: the rate of over-representation was 29 times.

Positive outcomes

A number of positive outcomes resulted both directly and indirectly from the Royal Commission’s report. In 1992, Wood J delivered a sentencing judgment of the NSW Supreme Court in the case of R v Stanley Edward Fernando (1992) 76 A Crim R 58. Fernando had been convicted of malicious wounding for stabbing his girlfriend in the neck and leg after both had consumed large amounts of alcohol. Fernando had lived his life on an Aboriginal reserve in rural NSW where the joint curses of lack of opportunity and substance abuse were prevalent. The judgment distilled a number of common law principles applicable to the sentencing of Aboriginal offenders. These principles recognise that the factors which often lead to criminal offending by Aboriginal defendants are the legacy of colonisation to which lengthy custodial sentences are an ineffectual response. The principles encourage courts to reflect this by shortening the standard non-parole period for a given head sentence, thereby allowing for a longer rehabilitative parole period, and continue to be cited and applied today.

In 1998, regulations were enacted in NSW which compelled Police officers to notify the ALS of the detention, following arrest, of an Aboriginal person. While no additional government funding was provided to ensure that there was a solicitor at the end of a telephone line 24 hours a day, this is precisely what the ALS did. Such solicitor performed two functions: advising Aboriginal detainees of their rights, in particular the right to remain silent (and not give a Police interview) and checking on their welfare, specifically, whether they were at risk of self-harm or suicide (in light of the concern which had led to the establishment of the Royal Commission). At times the Regulations have been given teeth by courts which have excluded evidence obtained by Police (typically in an interview of the detainee) when they had failed, either deliberately or inadvertently, to notify the ALS. On other occasions, courts have been less willing to give effect to the important public policy behind the Regulations, instead admitting the unlawfully obtained evidence.

The Royal Commission also led to greater political recognition of the deliberate unequal administration of justice in relation to Aboriginal people. This began with the Redfern Park Speech of 1992, delivered by Australia’s then Prime Minister, Paul Keating and marking the 1993 International Year of the World’s Indigenous People: ‘… the starting point might be to recognise that the problem starts with us non-Aboriginal Australians. It begins, I think, with that act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these things being done to us... The Report of the Royal Commission into Aboriginal Deaths in Custody showed with devastating clarity that the past lives on in inequality, racism and injustice.’

The past lives on

Despite these stirring words, the inequality persists. A stark example is the case of Julieka Dhu, a 22-year-old Aboriginal woman who died in police custody in Western Australia on 4 August 2014. Dhu had been detained for failing to pay the equivalent of approximately £2,000 in fines. A coronial investigation found that she had died from septicaemia resulting from a fracture to her rib caused by her former partner. The coroner’s report of December 2016 concluded that opportunities to diagnose Dhu had been lost because both Police and medical staff who saw her in the days before her death had assumed she was malingering or that her symptoms were drug-induced. It specifically found that three Police officers had acted in an ‘unprofessional’ and ‘inhumane’ manner in the hours preceding Dhu’s death and that their judgment had been affected by stereotypes about Aboriginal people. In May 2017, the Western Australian ALS wrote to the Western Australian Director of Public Prosecutions requesting that she consider laying criminal charges against the three Police officers on the basis of the coroner’s findings.

Even more recently, in July 2016, the Australian Broadcasting Corporation aired disturbing images of a juvenile detention facility in the Northern Territory where the the juvenile detention population is 94% Aboriginal. A boy was hooded, shackled, strapped to a chair and left alone. Another, 14-year-old, boy was kept in solitary confinement for 23 and half hours a day for two weeks, without natural light or running water while officers mocked him when he asked how long he had been in solitary confinement and why. This prompted the establishment, six days later, of a Royal Commission into the Protection and Detention of Children in the Northern Territory.

Mechanisms for change

Against this background, the obvious question is why does the unequal administration of justice in the case of Aboriginal people, or the legacy of past injustice, persist? One explanation is, as a result of the colonial history, there remain too few Aboriginal people occupying roles within State and Federal government which would enable them to effect real and meaningful change. Between 1971 and 1998, only one Aboriginal person, (conservative) Senator Neville Bonner, had ever been elected to Federal Parliament. In 2016, Labor MP, Linda Burney of NSW became the first Aboriginal woman to be elected to the Federal House of Representatives. In May 2017, civil servant, Brendan Thomas became the first Aboriginal Chief Executive Officer of Legal Aid NSW which employs solicitors who provide legal advice and representation to those who are unable to pay for such services privately.

I would forgive a reader for wondering what these matters, taking place as they do on the other side of the world, have to do with them: colonisation was a terrible thing but it ran its course and now the fate of Australia, including its Aboriginal peoples, lies in the hands of its current citizenry. While strictly true, this is too conveniently simple a view.

The colonisation of Australia, at the expense of Aboriginal society, was a deliberate act on the part of the British Empire in order to meet its own domestic imperatives, in particular its burgeoning prison population. Recognition of this fact should not give rise to collective guilt, but to a sense of collective responsibility. Responsibility for the amelioration of the consequences of empire can then be taken in very practical ways. Organs of the English Bar, including individual chambers, could consider inviting people like Linda Burney or Brendan Thomas to address them on the above matters. Chambers might proactively offer their assistance to aid the advancement of Aboriginal Australians into positions of power and influence – through mentorship, scholarships or chambers exchanges for Aboriginal law students or junior barristers. Chambers may have other ideas. Just as empire was an ambitious project, so must the rectification of its wrongs be.

CUSTODY: THE STARK STATISTICS

  • Presently, the total Aboriginal and Torres Strait Islander population aged 18 years and over – approximately 2.8% of the Australian population in that age bracket – accounts for over one quarter (27%) of the total Australian prisoner population, according to figures from the Australian Bureau of Statistics (30 June 2016).
  • The life expectancy of Aboriginal men born between 2010 and 2012 is over 10 years lower than for non-Aboriginal men (Australian Government Productivity Commission, November 2016). In 2010-2014, suicide and ‘falls’ ranked together with diseases of the circulatory system and cancer as leading causes of Aboriginal mortality.
  • These shocking figures are not the result of mere inadvertence, or a passive failure to act to improve the lot of Aboriginal people since the arrival of the First Fleet. Instead, they are largely the product of deliberate decisions to administer justice unequally made by all three arms – executive, legislative and even judicial – of successive Australian governments.

THE IMPORTANCE OF HISTORY

One of the first chapters of the Royal Commission’s report, entitled ‘The Importance of History’, contains the following words:

‘That Aboriginal people were dispossessed of their land without benefit of treaty, agreement or compensation is generally known. But I think little known is the amount of brutality and bloodshed that was involved in enforcing on the ground what was pronounced by the law. Aboriginal people were deprived of their land and if they showed resistance they were summarily dealt with…

‘From that history many things flow which are of central importance to the issue of Aboriginal overrepresentation in custody…

‘... there was one aspect of the relations between Aboriginal people and non-Aboriginal people… and where the relationship was at its worst; that is, the relations between Aboriginal people and the police…Police officers naturally shared all the characteristics of the society from which they were recruited, including the idea of racial superiority…police executed on the ground the policies of government and this brought them into continuous and hostile conflict with Aboriginal people. The policeman was the right hand man of the authorities, the enforcer of policies of control and supervision, often the taker of children, the rounder up of those accused of violating the rights of the settlers…

‘… this legacy of history goes far to explain the overrepresentation of Aboriginal people in custody, and thereby the death of some of them.’