2019 ANZSOC Conference, Justice reimagined: The intersection between Academia, Government, Industry and the Community

Title: Our women have spoken: the need for strengths-based approaches to violence prevention in Aboriginal and Torres Strait Islander communities

Yaningi warangira ngindaji yuwa muwayi ingirranggu, Noongar yani U.

Well thank you and good morning what a gathering. Thank you to the conference organisers and the working group and for inviting me to open with this keynote address. The issues you are tackling within criminology and across the criminal justice system and community settings are some of the greatest we face as a nation.

As the Aboriginal and Torres Strait Islander Social Justice Commissioner, a position formed in response to the findings of the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence, Indigenous people’s relationships and interactions with the criminal justice system is often at the forefront of my mind and work.

I, like you all, am constantly questioning how we can do better for our peoples in delivering justice.

This morning, in challenging us to think of other approaches to addressing crime, I want to step outside of the dominant western framework of justice. I come into this space not as a lawyer or a bureaucrat. I come knowing my Law, knowing my Indigenous system of knowledge and governance that has no word for incarceration, but strong rules and obligations of respect and interaction across the most intricate and complex kinship network the world over. We have sustained an incredibly cohesive and caring society in this way without any form of mass imprisonment since time began, as the oldest living civilization on earth.

Instead of in our books and articles and the policies and procedures we all follow, the solutions we all seek to the issues we tirelessly confront may be beneath our chairs right now, beneath our feet – in a law that describes our one humanity and our connectedness to the planet.

The land we gather on today, this land, has law.

A law formed when the country was soft, flowing through the veins of this earth as it came into being, and continuing to flow into our minds, bodies, and words today. My Bunuba mob and others in the central Kimberley call this ancient law Ngarranggani, the Yawuru and other saltwater people call it Bugarrigara, for the Anangu it’s the Tjukurrpa. In the Kimberley the law is lived and applied through Wunan, the system of reciprocity, composed of ceremony, song-lines and obligations, it enables exchange and the sharing of knowledge, it brings families and communities together within our gatherings where we connect, laugh, find husbands and wives and where we resolve conflicts. These are also the spaces of vital learnings where we transfer knowledge of caring and being within country as an equal with all human and non-human relatives. Laws such as this are what Indigenous countries are made of.

Law spreads across this land in language, song, dance and ceremony. There are words for this law that entwines humanity in a system of care and a deep affinity with the land all over our globe from New Zealand, to the Arctic circle, the Amazon Basin, the Rift Valley and the Welsh Valleys and the clans of Ireland.

It is these expansive systems which hold so much of the knowledge of our collective and common humanity. I believe that all Australians, Indigenous and non-Indigenous, want to live in a modern nation that upholds our individual and collective rights and freedoms to allow this humanity to flourish.

I want to stand here and commend our achievements. I want to believe that we are creating this common humanity.

There is good and necessary work happening all the time, across the criminal justice system, from improved relationships between community and police and apologies condemning the wrongs perpetrated by the police in the past, such as that made by the WA Police Commissioner Chris Dawson. These actions are important.

But is it enough?

The vigils and protests, of the last few weeks, across this nation calling yet again for justice of lives lost in custody brings into sharp focus profound systemic failures. The same is true of Australia’s soaring rates of incarceration – a 52% increase in the last 10 years.[i] Indigenous Australians remain overrepresented, making up 3% of the general population but 28% of the prison population.[ii] The rates of Indigenous women’s incarceration is increasing faster than any other group.

There are other issues reaching epidemic proportions like domestic and family violence, where one woman dies every week in Australia. Again, our women are overrepresented. Their experience of domestic and family violence is also inextricably linked to their incarceration. Evidence suggest that 70-90 percent of women incarcerated have experienced violence or a form of abuse in child and adulthood.

This is shocking and should be treated as a national shame and crisis and yet this week it was announced that the federal government was cutting funding to our peak advocacy body, The National Family Violence and Legal Services Forum.

What is happening for this to have become our reality?

We can no longer ignore truth, from the ceaselessly burning fires to the never empty prison cells, we must face what is really happening in this nation, and this globe.

Truth has proven very difficult for many of us to confront, particularly the truths about the foundations of this nation and the ongoing impact of inequality on our people. This nation has a strong track record of turning away from truth with anger, resentment and denial.

For too long there has been an extreme denial about Aboriginal and Torres Strait Islander society, knowledge systems and our existence in Australia before European arrival, when this land was pronounced terra nullius.

I believe that between denial and truth is immense fear about what we will unearth. A fear that what we see will be so uncomfortable that we can no longer continue on with business as usual, and that change, and transformation will be the only way forward.

More extreme than outright denial is a pervasive denial of refusing to see the past replicated in present structures. It is this denial that actively stops the truth-telling required for change to take effect.

To confront this, I believe that we have to seek out the truths that sit within the voices of lived experience, those voices that have felt first-hand the injustices of our current system.

That is why the first thing I did as Social Justice Commissioner was to launch Wiyi Yani U Thangani – a national engagement with our Aboriginal and Torres Strait Islander women and girls, who’s voices have been denied for too long and it was certainly time to hear their truths.

Throughout 2018 my team and I travelled the nation and spoke to over 2000 of our women and girls. We will be releasing the report detailing what they told us next year. We heard many incredible strengths, but for far too many their lives are characterised by trauma and crisis.

What never fails to shock me is that so often the only intervention to the many issues raised by our women and girls from mental health conditions, homelessness, financial insecurity, domestic and family violence, drug and alcohol addictions, are the punitive interventions of the criminal justice system.

Our overincarceration is perhaps the most prominent example and evidence of the generational discrimination, inequality we have faced in this nation, and the ongoing denial of our most basic rights to things like health, education and housing.

Women have said that we are being punished for acts that become a necessity when living in extreme financial insecurity. Poverty has been criminalized, not because of an increase in crime but a national turn toward harsher sentencing, greater police power and people being held on remand and refused parole, simply because they do not have the financial resources to not commit the crime, or to be able to pay their way out of jail.

There is a wealth of evidence showing the disproportionate impact that tougher, certainly not fairer, legislation has on our people and increasingly our women and children. It is all reflected in the numbers. WA is locking up our women faster than any other state and more often for minor offences than non-indigenous women. Our women are behind bars on short-term sentences, for crimes that do not pose a threat to society, but absolutely threatens their lives. And the destabilisation caused by short-term imprisonment increases the likelihood of their reoffending.    

In these cases, imprisonment can never act as a deterrent for crimes that are simply impossible to avoid.

Governments invest around $16 billion annually into a system that has defeated its own objectives to rehabilitate and reduce reoffending. The investment is only set to increase to manage a booming prison population diverting resources and funds away from the alternative approaches to addressing poverty. These being a stronger social security net and investments in community-led and based programs and infrastructure.

Here is a question about truth: has this modern Australian nation ever been able to conceive of an alternative system beyond incarceration to responding to social issues and supporting the most marginalised?

The original conception of this nation was a penal colony where the overwhelming number of convicts sent to these shores had committed the same so-called crimes of poverty, like stealing bread.

Along with bodies the convict vessels transported the British administrative system of punishment. The construction of the Australian nation replicated this system and etched into our countries European land management regimes and individual capital investment and growth all of which denied our laws and existence, while simultaneously imprisoning our people for transgressing the new laws of the British empire.

The markers of this system surround us in cities like Perth today. The first buildings constructed that have come to define modern Australian heritage in Perth are the Fremantle prison known as the Round House, built in 1830, and a few years later the courthouse.

Then just across the water is Wadjemup, known to many as Rottnest Island, now a popular holiday destination. It is a sacred and spiritual place for the traditional owners of the island the Whadjuk Noongar people.

In 1838, a few years after the courthouse was built it became an Aboriginal only Island prison. From when it was built until 1931, 4000 Aboriginal men and boys were imprisoned there. They were taken from across the state including the Gascoyne, Pilbara, Kimberley and the Central Desert.

Today the island is lauded as having the most intact colonial street in Australia, named after the Superintendent of the island Henry Vincent – known for his extreme cruelty against our peoples. For us, these places contain deep wells of grief unrecognised by this nation and are painful reminders of the British imperial web of power that pulled our peoples from so many countries into an island prison.

This was a power that was not just a state police force subjugating a people. This was a colonial power that through ruthless tactics and co-option, dispossession and imprisonment were fragmenting our society, breaking our families apart and removing our senior law holders in an attempt to abolish and overthrow our civilization.

The fragmentation and breaking up of our families and kinship networks is exactly what our women talk of today as the consequence of incarceration and child removal.

The intergenerational inequality driven by this system has marginalised a greater proportion of our peoples into poverty, meaning that the systems punitive approaches, largely unchanged, disproportionately impact us. This is what forms the structures of violence and racism that we live within today.

The current crisis of incarceration is our historical crisis of incarceration. It has never ended.

This is the past not just reflected, but alive and well, in the systems that re-produce the devastating statistics of history, today.

Perhaps the most devastating is again represented by the recent history of Wadjemup. During the life of the prison it is estimated that around 400 of our men and boys died. The burial ground holding the spirits of our ancestors, unmarked for decades, is known as the largest deaths in custody site in Australia.   

Our people died at Wadjemup for crimes that were not crimes. Today our people continue to die in custody mainly on remand or inside for minor offences.

Since 1991, when the Royal Commission put forward its recommendations there have been a further 424 deaths in custody. WA has seen 51 deaths in custody during this period, the largest of any jurisdiction.

Kumanjayi Walker, and here in WA Joyce Clark, a Yamatji woman, both shot by police are the most recent names, the most recent pain in an open wound that runs deep into the history of this nation. Both cases are under investigation.

Once again, our people will wait restlessly for the litany of distressing truths about our disadvantage, discrimination and intergenerational trauma and the recommendations to rectify the inadequacies of a system incapable of responding to the issues symptomatic of these conditions. We wait for recommendations that have already been made in countless reports and have never been effectively implemented.

The frequency of Deaths in Custody as evidence of entrenched discrimination at work makes the next death all too likely, maybe even predictable.

From Yuendumu, to Kalgoorlie, to Palm Island, to Sydney, Perth, Geraldton, and Broome, across this vast and diverse nation, Aboriginal and Torres Strait Islander peoples say enough.

I say, we all need to say, enough!

No more preventable deaths, anywhere and at any time. I ask you all, on who’s watch is this happening? Was it on Henry Vincent’s at Wadjemup, is it on the prison guards, the police officers, the bureaucrats, the public?

It’s on all our watches. We are all implicated in a system of denial.

Together, on all our watch, we cannot let the hands of time tick toward a future that is defined by historical injustice any longer.

Because how many more lives will it take for us to change the system – are we really satisfied that as time progresses, we continue on, changing nothing?

The protests today and the many Indigenous and non-indigenous people standing for justice, and your work in challenging the current systems, gives me faith that maybe we can break this historical legacy once and for all.

The same is true of our women and girls who throughout Wiyi Yani U Thangani spoke firmly about an alternative way of living in this world. They can see a far better system grounded in our unique and inherent human rights of self-determination where institutions and policies are reconstructed from the ground up, designed and governed by us and informed by our culture and ancient knowledge.

The future they see, is the future I see, and I know its possible. But it depends on our commitment to truth-telling as a fierce drive toward achieving justice for the entire nation, Indigenous and non-Indigenous.

It’s time for a different track record. It is time to change the course away from denial and toward truth.

Let me briefly finish with the work happening at Wadjemup. The State government is working with the Island Authority and the Noongar Whadjuk community to properly recognise the history of the island starting with the burial ground, and the prison quod. Through this partnership people from different backgrounds and histories are invested in a process of truth-telling and healing and are developing the first large scale memorial recognising the impact of colonisation on our people. The steps they are taking are a first, it sets the precedent!

This is no easy process, it is difficult for everyone involved. But the power of truth-telling is in its process, where grief makes way for healing, and healing unites people in the space of transformation, who once were divided.

To embrace the potential of what we can become as a nation, to reform our institutions and let the law of the land speak through us all, we cannot afford to see our current laws and policies as static, rigidly held in place by colonial origins with archaic and violently prejudicial conceptions of race.

In the immediate it remains important to advocate loudly for changes to legislation that discriminates, so we can finally reduce our rates of incarceration.

But the work of truth-telling is a constant, it is all our work, our responsibility to actively be doing it. It does not stop. It is enacted through our own everyday practices, in our interactions and how we work, it happens through encounter with one another and in discussions. Truth-telling can shift expectation and perspective, and it is how we bring humanity to everyday existence. It is my experience that behaviours and actions change when people come to know another reality – imagine the police officers who work with community and choose themselves to say enough – no more guns – while learning to approach their work free of judgement and with compassion and truth. I guarantee that would save lives.

Never underestimate the change you can make through your own voice, or what changes in you when you listen deeply, and enable truth to be brought to the surface. This is hard work that will bring up fear, shame, guilt, and anger. But when you feel those emotions, conjure up the opposites – be honest, have courage, bravery and confidence, believe in our collective selves and our one humanity, and the greatest most powerful thing you can do is to counter anger with love.

When we think like this it frees our minds from the cells of denial.

It begins to uncover the common humanity that I spoke of in opening that reaches across this globe and back into the depths of time, that sings a law of interconnectedness.

It is people like all of you who can bring this system of justice into reality. I really look forward to hearing about your discussions over the next three days.

Remember it’s up to us to say no more inhumanity! No more deaths! Not on my watch.

It is up to us to change the course of history.

Thank you.

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[i] Australia Bureau of Statistics (ABS), Corrective Services, Australia, June Quarter 2019, https://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0 (viewed 26 November 2019) - The number of prisoners for the June 2019 quarter in Australia was 43,306. In the last ten years (from the June quarter 2009 to the June quarter 2019), the average number of persons in custody has increased by 52% (14,897 persons).

[ii] Australia Bureau of Statistics (ABS), Corrective Services, Australia, June Quarter 2019, https://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0 (viewed 26 November 2019)