Barriers to Accessing Justice: Lateral Violence

Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

Jasper Hotel
Melbourne
Thursday 22 November 2012

Acknowledgements

I would like to begin by acknowledging that we sit on the lands of the Wurrundjeri Peoples. I pay my respects to their Elders past and present.

My people are the Gangulu from the Dawson Valley in Central Queensland. When I speak to my Elders, they ask me to pass on my salutations to the Traditional Owners of the land I visit for their continued fight for their country and their culture.

I would like to acknowledge my Aboriginal and Torres Strait Islander brothers and sisters who are here today; and thank the Aboriginal Family Violence Prevention and Legal Service Victoria for inviting me to speak at this Conference.

I would also like to acknowledge my fellow speakers in this session, Debbie Kilroy and Judge Paul Grant.

Today as we talk about barriers to accessing justice, I think it is especially important that we acknowledge the central role that culture, kinship and country plays in the resilience of our peoples.

These are the sources of our strength.

As I was told last year when I was at Uluru, our Aboriginal and Torres Strait Islander cultures are a big part of what makes Australia unique and are something in which all Australians should share and be proud of. The welcome and acknowledgment of country protocols are one way the broader Australian community can share in our cultures.

Introduction – my priorities

Before I start my presentation, I’ll give you some background to my role as the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Australian Human Rights Commission.

The role of the Social Justice Commissioner is described in the Australian Human Rights Commission Act and my duties include the preparation of two annual reports:

• the Social Justice Report, which reports on issues affecting the human rights of Aboriginal and Torres Strait Islander peoples in accordance with the Australian Human Rights Commission Act 1986, and
• the Native Title Report, which reviews the impact of the Native Title Act 1993 on the exercise and enjoyment of the human rights of Aboriginal and Torres Strait Islander peoples.

When I first took up this role in 2010 I looked at the immense range of human rights issues confronting Aboriginal and Torres Strait Islander peoples. I looked at the inter-generational effects of disadvantage and trauma facing our peoples. I spoke with and listened to many individuals and communities across Australia: in urban, regional and remote settings. I heard time and again of the hurt and disempowerment of our peoples.

After hearing of these hurts I decided that we needed to reframe the issues.

And I decided that the key to reframing the issues – my overarching priority – was fully implementing the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) in Australia.^[1]

The Declaration was adopted by the Australian Government in 2009 and it clearly sets out how Australia’s existing human rights obligations apply in the Aboriginal and Torres Strait Islander context.

I believe the Declaration can be used to address the hurt and disempowerment of our peoples. I also view the Declaration as guiding my other priorities, which are to promote the development of stronger and deeper relationships:

• between Aboriginal and Torres Strait Islander peoples and the broader Australian community
• between Aboriginal and Torres Strait Islander peoples and governments, and
• within Aboriginal and Torres Strait Islander communities themselves.^[2]

Today I will focus on relationships within Aboriginal and Torres Strait Islander communities, and our relationships with governments.

I will talk about lateral violence and the damage it is doing to us, in our communities, in our organisations and in our families. And I want to look at how human rights principles set out in the Declaration can guide our responses – and government’s responses – to lateral violence.

Finally, I want to discuss Indigenous governance and what we need to do to break down the barriers to accessing justice.

Lateral violence

In last year’s Social Justice and Native Title Reports, I started a conversation about lateral violence.

For those of you wondering what I mean by lateral violence, let me explain. Lateral violence comes from behaviours that might include bullying, gossiping, jealousy, shaming, social exclusion, family feuding and organisational conflict, which often escalate into physical violence.

Now, lateral violence occurs in all levels of society but for oppressed peoples it is particularly acute and has a particularly sharp edge.

For us, lateral violence can be described as ‘internalised colonialism’ and according to Richard Frankland includes:

[T]he organised, harmful behaviours that we do to each other collectively as part of an oppressed group: When we are consistently oppressed we live with great fear and great anger and we often turn on those who are closest to us.^[3]

The theory behind why lateral violence impacts us differently is because it is often the result of disadvantage, discrimination and oppression, and it arises from working within a society that is not designed for our way of doing things.

It stems from that sense of powerlessness that comes from oppression.

Let me explain this further – in order to establish power and control, the colonising powers positioned groups being colonised as inferior to themselves, ignoring their basic humanity as well as their cultural identity, existing power structures and ways of life. Despite fierce resistance on the part of the colonised groups, often they internalised the values and behaviours of their oppressors, leading to a negative view of themselves and of their culture. This results in low self-esteem and in some cases the adoption of violent behaviours.^[4]

The anger and frustration about the injustice of feeling powerless perversely manifests itself in violence – not ‘vertically’ towards the colonisers but ‘laterally’ towards their own community. This is why we have come to call it ‘lateral violence’.

Anyone familiar with this nation’s history will know that colonial authorities used Aboriginality – and the extent to which anybody claimed it – as a powerful mechanism of control. Our history of colonisation casts a dark shadow across our present.

While lateral violence has its roots in our history, it thrives today because power imbalances, control by others, identity conflict, negative stereotypes and trauma continues to feed it.

Technology is also providing new ways for people to commit lateral violence against each other. In last year’s Social Justice Report, I talked about lateral violence playing out in our communities as cyber-bullying, cyber-stalking and cyber-gossiping. And I outlined the example of mobile phones applications such as Diva Chat that allow people to send anonymous messages to spread gossip, abuse and other forms of lateral violence.^[5]

Lateral violence leading to involvement in the criminal justice system

Lateral violence helps explain how a history of dispossession, marginalisation and trauma can erupt against those who are closest to us. And it can help to explain the level of involvement of Aboriginal and Torres Strait Islander peoples within the criminal justice system.

We know that substance abuse, lack of education and employment opportunities, experience of violence, abuse and other underlying factors can all contribute to violent offending.^[6] But in addition to these factors, I think lateral violence can be part of an explosive mix in some cases.

So how does lateral violence lead to involvement in the criminal justice system?

As I travel around the country talking to people, I am often told anecdotes that suggest a link between lateral violence and involvement with the criminal justice system.

For example, in 2008 I attended the annual gathering of the Koori Courts in Melbourne with over 120 judges, magistrates, Elders and respected people and staff. When I explained the concept of lateral violence, I was told that it was the genesis of many of the cases of assault that came before their courts.

Lateral violence can also be a factor in family violence. Marcia Langton has argued that the:

...most at risk of lateral violence in its raw physical form are family members, and in the main, the most vulnerable members of the family: old people, women and children.^[7]

When we hear about long running feuds in communities that spill over into violence, this can be seen as a manifestation of lateral violence as well. For instance, the Victorian Aboriginal Child Care Agency has conducted research around lateral violence and cultural safety where young people have reported being told by older family members to attack other community members as part of long held feuds.^[8] This behaviour has led to involvement with the criminal justice system.

Whilst many of the instances of lateral violence leading to contact with the criminal justice system are anecdotal and need further investigation, what is not anecdotal are the rates of violent victimisation for Aboriginal and Torres Strait Islander peoples.

The statistics on violent victimisation for Aboriginal and Torres Strait Islanders are both disturbing and incomplete.

Although there are limitations in the data, we know that Aboriginal and Torres Strait Islanders are more likely to be victims of family violence and other violence where there is a relationship with the offender than non-Indigenous Australians.^[9]

One way of looking at the level of violent victimisation is in terms of hospitalisation. Nationally, in 2008-2009:

• Aboriginal and Torres Strait Islanders were hospitalised for family violence related assaults at 23 times the rate of non-Indigenous people.
• Aboriginal and Torres Strait Islander women were hospitalised as a result of assault by a family member other than their spouse or partner at 52 times the rate for non-Indigenous women.
• Aboriginal and Torres Strait Islander males were hospitalised as a result of assault by their spouse or partner at almost 42 times the rate for non-Indigenous males.
• In remote areas, Aboriginal and Torres Strait Islanders were hospitalised as a result of family violence at 35 times the rate of non-Indigenous people.^[10]

Another way is to measure violent victimisation is homicide rates. Between 1999 and 2009, the rate of homicide for Aboriginal and Torres Strait Islanders was 8.5 times the rate for non-Indigenous people.^[11] And Aboriginal and Torres Strait Islander peoples were more likely to be killed by family members or intimate partners.^[12]

Addressing lateral violence: the Declaration and our human rights

So what can we do to address the pervasive, destructive and potentially violent behaviour of lateral violence in our families, communities and organisations?

As I mentioned earlier, I believe the Declaration – which sets out our human rights and obligations – can provide a guide to strengthen and improve our relationships:

• with the broader Australian community
• between our peoples and governments, and
• within our communities.

We must remember that human rights are not just abstract concepts that exist in documents such as treaties, conventions, covenants and declarations. Human rights provide governments with a set of minimum legal standards which must apply equally to all people.

A human rights framework provides parameters – universally agreed parameters – for a society to foster dignity and equality of all citizens. And I mean substantive equality – that is, equality in outcomes for all peoples.

The Declaration reflects the human rights standards necessary for the survival, dignity and well-being of the Indigenous peoples of the world.

In the Preamble to the Declaration, the General Assembly of the United Nations says that:

...the recognition of the rights of indigenous peoples in the Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.^[13]

For me, this captures the essence of the Declaration – that is, to enhance the relationship between Aboriginal and Torres Strait Islander peoples and governments.

The Declaration also contains a number of key principles that underpin the rights it protects. Those key principles can be summarised as:

• firstly, self-determination – this is also a key right protected by the major international treaties
• secondly, participation in decision-making, good faith, and free, prior and informed consent – this is about ensuring that we can make decisions about developments that affect us, and also building trust and respecting how we engage with each other on these matters
• thirdly, respect for and protection of culture, and
• finally, non-discrimination and equality.^[14]

The Declaration and its key principles and rights can be viewed as an instrument to build relationships. It should form the foundation of a new relationship of respect and engagement between governments and Aboriginal and Torres Strait Islander peoples.

Governments need to start hearing our voices and working with us in the development and implementation of laws, policies and programs. I have seen that there is a lot of goodwill within governments and I believe there is a genuine intention to engage respectfully with Aboriginal and Torres Strait Islander peoples.

But in my view, governments lack the skills and knowledge – in particular the cultural competency – to do it properly. The Declaration provides a good place for governments to start as it provides necessary practical guidance.

The Declaration should also be used as a tool for reconciliation generally, in building harmonious and co-operative relationships between Aboriginal and Torres Strait Islander peoples, governments and the broader Australian community. The Declaration outlines how Aboriginal and Torres Strait Islander peoples should be valued in the broader, non-Indigenous society, in order for our human rights to be enjoyed equally with others.

And it can be used by Aboriginal and Torres Strait Islander peoples to guide the development of healthy, respectful and inclusive relationships within our communities. For example, we can ask, are our representative organisations obtaining our free, prior and informed consent? Or how are they ensuring their people participate in decisions that affect them?

We can ask ourselves whether that comment we just made about our neighbour’s Aboriginality, or spreading yarns we heard at the bingo hall or the pokies, amounts to lateral violence.

From the many discussions I have had with Aboriginal and Torres Strait Islander communities across the country, there seems to be a considerable appetite to confront and deal with lateral violence occurring in our families, communities and organisations.

To do this, we need to move beyond our weaknesses – we need to identify solutions together and build upon our strengths.

In last year’s Reports, I talked about Aboriginal and Torres Strait Islander peoples exerting control over lateral violence by naming it, and raising awareness of its existence and its impacts. It is essential that we take responsibility to ensure that everyone within the community is treated respectfully and with dignity.

Governments, NGOs and industry also need to create environments that are culturally safe and secure; and ensure that those who work with us are culturally competent.

I believe that the role for governments is very distinct when it comes to lateral violence. The reality is this – governments cannot and should not intervene to fix our internal relationships.

Rather governments must ensure their involvement in our lives does not create breeding grounds for lateral violence.

I encourage governments, NGOs and industry to work with us to make sure that their structures, policies and legislative frameworks do not contribute to disempowerment, division and mistrust which foster lateral violence in our communities.

Finally, we as Aboriginal and Torres Strait Islander peoples must hold each other accountable to this type of behaviour. It is us who need to call this behaviour when it occurs. It is us who must strive to rebuild our cultural values that respect and protect our communities against lateral violence. We must become more than just bystanders sitting on the side lines.

Confronting lateral violence will take courage, foresight and leadership. It is time now, to shed the negative labels – those of the coloniser and those used by communities against each other. It is time to take back control of our rich, resilient and varied Aboriginal and Torres Strait Islander identity.

Strengthening our Indigenous governance

To finish, I want to briefly mention the theme of this year’s Social Justice and Native Title Reports. The Reports, which talk about Indigenous governance, will be tabled in Parliament next week.

I firmly believe that governance is an integral component of combating conditions of lateral violence.

For Aboriginal and Torres Strait Islander peoples, governance is about how we organise ourselves and make decisions about our lives in a culturally relevant way. It also allows us to decide on the norms, values and laws of our communities and cultures.

Strong governance structures allow us to deal with the inherent tensions of living between the two worlds in which we live and to which we are forced to adapt.

Governance can provide a foundation for empowerment, inclusive decision-making and effective dispute resolution processes. It can also help us to achieve our aspirations.

In the Reports, I talk about three connected components that enable effective governance in Aboriginal and Torres Strait Islander communities. These are:

• community governance
• organisational governance, and
• the governance of governments and other external influences.

Effective governance for Aboriginal and Torres Strait Islander peoples needs to start with us – with our peoples and with our communities.

We need to take control of situations, we need to take responsibility for our lives and we need to take action. Then we will be able to celebrate our strengths through our own eyes and in our own words, and enable others to do the same.

Thank you.

^[1] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice
Report 2010, Australian Human Rights Commission (2011), p 13.
^[2] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2010, Australian Human Rights Commission, (2011), pp 13–14.
^[3] R Frankland and P Lewis, Presentation to Social Justice Unit staff, Australian Human Rights Commission, 14 March 2011.
^[4] See P Freire, Pedagogy of the Oppressed (1971) and F Fanon, The Wretched of the Earth (1963).
^[5] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2011, Australian Human Rights Commission, 2011, pp 85–86.
^[6] J Wundersitz, Indigenous Perpetrators of Violence: Prevalence and risk factors for offending, Australian Institute of Criminology, Research and Public Policy Series 105 (2010). At http://www.aic.gov.au/publications/current%20series/rpp/100-120/rpp105.aspx (viewed 12 November 2012).
^[7] M Langton, ‘The end of “big men” politics’ Griffith Review Edition 22 (2008), p 15. At http://griffithreview.com/edition-22-moneysexpower/the-end-of-big-men-politics (viewed 12 November 2012).
^[8] R Frankland, M Bamblett, P Lewis and R Trotter, This is ‘Forever Business: A Framework for Maintaining and Restoring Cultural Safety in Aboriginal Victoria, Victorian Aboriginal Child Care Agency (2010), p 50.
^[9] Australian Institute of Criminology, Information provided to the Office of the Social Justice Commissioner, 14 June 2011. For more detailed information see M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2011, Australian Human Rights Commission (2011), Appendix 6.
^[10] Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2011, Productivity Commission (2011), p 4.125. At http://www.pc.gov.au/gsp/reports/indigenous/key-indicators-2011 (viewed 12 November 2012).
^[11] Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2011, Productivity Commission (2011), p 4.125. At http://www.pc.gov.au/gsp/reports/indigenous/key-indicators-2011 (viewed 12 November 2012).
^[12] Australian Institute of Criminology, Information provided to the Office of the Social Justice Commissioner, 14 June 2011. For more detailed information see M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2011, Australian Human Rights Commission (2011), Appendix 6.
^[13] United Nations Declaration on the Rights of Indigenous Peoples, preambular paragraph 18.
^[14] For a more detailed discussion on the key principles in the Declaration see M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2011, Australian Human Rights Commission (2011), chapters 1 and 3.