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

Symposium on Indigenous Sentencing, Punishment and Healing

Rydges Esplanade Hotel, Cairns

5 July 2011

I would like to begin by acknowledging the Yidinji Peoples. I pay my respects to their Elders past and present.

I am a Gangulu person from the Dawson Valley in Central Queensland and 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.

Thank you to Chris Cunneen for inviting me to give the opening address at this Symposium.

It is wonderful to see so many people here who give of themselves tirelessly on the issues we will discuss and debate over the next two days, despite it being a constant uphill battle and a battle that many in our society would prefer that you didn’t fight.

My hope is that these next two days will reaffirm our commitment, reenergise us and provide practical directions for the way forward.

I am not going to list a whole stack of statistics today that you know only too well, apart from saying that as we mark the 20 years since the Royal Commission into Aboriginal Deaths in Custody, it is a blight on Australia that over representation of our people is getting worse, not better.

More importantly, many of you work with individuals who are in and out of the criminal justice system. Their stories are more powerful than all the statistics on record in painting a picture of a criminal justice system that is failing to meet the rehabilitative and reintegrative needs of Aboriginal and Torres Strait Islander offenders, their families and communities.

Today I am going to be talking to you about healing our relationships in order to achieve improvements in the way the criminal justice system deals with Aboriginal and Torres Strait Islander people.

Strengthening relationships is one of the key priorities of my term as Social Justice Commissioner.

My priorities were informed in part by the many conversations I have had on my travels; and in part by my own experience over many years of involvement in the Indigenous policy environment. During this time, I have come to the conclusion that without positive relationships and rules of engagement about how those relationships are maintained and nurtured, the status quo will not change significantly.

I want to see stronger and deeper relationships:

• Firstly, between Aboriginal and Torres Strait Islander peoples and the broader community.
• Secondly, between Aboriginal and Torres Strait Islander peoples and governments.
• And thirdly, within Aboriginal and Torres Strait Islander communities.

So what does this mean for addressing over representation in the criminal justice system?

Firstly, when we think about the relationship between Aboriginal and Torres Strait Islander people and the broader community in relation to the criminal justice system we need to turn our thoughts to the racism that Aboriginal and Torres Strait Islander people experience.

We don’t need to dig deep to uncover stories of racist treatment in relation to the criminal justice system. There are still pervasive stereotypes out in the broader community that Aboriginal and Torres Strait Islander people are all criminals and should be treated accordingly. This is a proposition that I refuse to concede.

We know from speaking to young Aboriginal men in particular that is not uncommon for people to look at them with fear in their eyes, like they are expecting them to the rob them or worse. We know that Aboriginal people get followed around by shop attendants just to make sure they don’t shoplift anything. When my son was fourteen he got me to stand outside a department store in Perth just to watch a security guard do exactly that. We know that Aboriginal kids hanging around the street are seen as causing trouble when they have just as much right as anyone else to make use of public space for socializing and having fun.

Aboriginal people carry the burden of these racist stereotypes around with them through many social interactions. Most Aboriginal and Torres Strait Islander people deal with this with great dignity, humour and grace but unless we start to challenge these stereotypes and mend these broader relationships we will continue to have relationships based on mistrust.

But even more damaging than this is the structural racism that affects Aboriginal and Torres Strait Islander peoples involvement in the criminal justice system.

Structural racism refers to the:

discriminatory impact of laws, policies and practices, rather than individual racist attitudes. Structural racism is judged according to outcomes not intentions and is more insidious than overt attitudinal racism and more difficult to challenge and confront.^[1]

This begins to illustrate the second dimension on strengthening relationships: improving the relationship between Aboriginal and Torres Strait Islander people and governments. Governments, with their responsibility for making laws, administering policing and corrections, have an obligation to make sure that their policies and practices do not result in discriminatory outcomes for Aboriginal or Torres Strait Islander people.

Crucially, this needs to be done within an awareness of the historical context. Again, we don’t need to dig deep to uncover a history where the Police and other criminal justice agencies had an overt role in the oppression of Aboriginal and Torres Strait Islander people. Police were often the agents of the forcible removal of Aboriginal and Torres Strait Islander children and have been administering ‘rough justice’ to our people for a long time.

In 1965, the Queensland Government introduced the Aboriginal and Torres Strait Islanders’ Affairs Act which replaced the 1939 Aboriginal Preservation and Protection Act.

In that same year, Jack Pizzey the then Minister for Education and Aboriginal affairs in Queensland noted that unless the Department of Aboriginal and islanders’ Affairs maintained control over Aboriginal people, the Courts would have ‘no alternative but to send Aboriginal people to jail’. ^[2]

The legacy of this oppression lives on today. While Aboriginal and Torres Strait Islander people regard the criminal justice system as the enemy there is little trust to report crime to the Police either. Although Aboriginal and Torres Strait Islander victimisation rates are staggeringly high compared to the non- Indigenous population, we know that there is still under reporting, especially of family violence.

The lack of trust that so many Aboriginal and Torres Strait Islander people feel about the criminal justice system is clearly borne out in the current context as well.

To return to the idea of structural racism, Aboriginal and Torres Strait Islander people are less likely to be diverted from the criminal justice system and therefore more likely to face conviction and escalating sanctions such as custodial sentences.

We know that the way Aboriginal and Torres Strait Islander people use public space makes them more likely to be subject to Police move on orders, which often escalates into public order offences.

The Queensland Government developed by-laws to enforce discipline and control over reserve inmates. As historian Frank Stevens observes, by-laws supported harsh measures on Queensland reserves such as making it a punishable offence for Aboriginal reserve residents to enter or leave a park in any way other than through a gateway provided for that purpose. Similarly, it was an offence to gossip or ‘carry tales about a person’. ^[3]

It was also an offence for reserve inmates in Queensland to be ‘insolent, idle or careless’.^[4]

We also know that Aboriginal and Torres Strait Islander people, juveniles in particular, have difficulty meeting the strict bail conditions that are often imposed, resulting in breaches and remand. We also know that Aboriginal and Torres Strait Islander people are more likely to be imprisoned for relatively minor offences like justice and public order offences, compared to the general population.

Let me use driving offences as an example of structural racism. The laws regarding driving offences are the same for all Australians but their impact on Aboriginal and Torres Strait Islander people is profound.

In 2003 Aboriginal prisoners accounted for 61% of all prisoners going into jail for a driving offence in Western Australia.^[5] Many of the driving offences relate to suspended driving licenses, often as a consequence of unpaid fines. However, with no public transport in remote locations people who have lost their driving licenses are stuck between a rock and a hard place when they still have to travel for court attendances, medical appointments, cultural business etc.

Again in Western Australia we have seen the tragic results of this sort of discrimination. Mr Ward died in the back of a corrections van after being charged with a drink driving offence. I think we need to ask ourselves, why was Mr Ward in the back of that van in the first place? If it were you or I, living in a major city, we would have been charged and released for a similar offence in a matter of hours. Instead, Mr Ward was subject to the most inhumane treatment, transported nearly 1000 kms in searing heat, in the back of a van with no air conditioning.

And of course, if we are talking about minor offences leading to police custody and tragedy, it is impossible to ignore the case of Mr Doomadgee who was arrested for causing a public nuisance but tragically died of his injuries in custody on Palm Island.

Again, as we reflect on the twenty years since the Royal Commission into Aboriginal Deaths in Custody it is a shocking indictment on the implementation of this report that we are still seeing these sorts of deaths take place.

Looking at these examples, we can see that there is a lot of work that needs to take place to the mend the relationship between Aboriginal and Torres Strait Islander people and the criminal justice system.

Firstly, I think governments need to show that they are serious about doing something to improve the relationship. It is not enough to talk about respect and partnership- words are hollow without action.

Just a couple of weeks ago, a new parliamentary report has been released about Aboriginal and Torres Strait Islander young people and the criminal justice system, aptly called, ‘Doing Time: Time for Doing’. And it certainly is time for doing.

One of the things this report recommends, and something that we have been calling for at the Australian Human Rights Commission, is justice targets to be included in the Closing the Gap Strategy. I don’t think you can be serious about addressing Indigenous disadvantage if you neglect to address one of the biggest areas of inequality for Aboriginal and Torres Strait Islander people. By committing to justice targets, we can get all governments on side and make them accountable to sustained improvement in the way the criminal justice system works with Aboriginal and Torres Strait Islander people.

Targets are only the first step. If we are serious about improving the relationship, positive action needs to be combined with engagement and respect.

This is where I think justice reinvestment comes in. Many of you will be familiar with justice reinvestment from my predecessor, Tom Calma and I’m aware that there is a panel discussion about it later this morning so I will be brief.

Justice reinvestment reorientates the criminal justice system to prevention rather than detention and concentrates on investing resources into communities where there are high concentrations of offenders. But justice reinvestment is also a tool for community engagement in crime prevention.

The way I see it, governments identify the high stakes communities and then work intensively with the communities to look at why crime is occurring, what they think can be done to address it. Governments and communities identify what cultural resources, like Elders and community justice groups can be utilised and ultimately develop a funded plan to tackle crime.

This might mean more money for substance abuse or mental health programs, it might mean improving the way Elders and community justice groups work with courts, it might mean trialling new ways to deal with things like driving offences, or it might mean healing programs. But the bottom line is that the outcomes will be generated by the community in partnership with the government. This way of working is what will lead to better relationships and better criminal justice outcomes.

Finally, I want to turn to the third dimension of strengthening relationships, our relationships within our own Aboriginal and Torres Strait Islander communities. This is a key priority for me and I will be looking at this through the concept of ‘lateral violence’.

Lateral violence is described by Richard Frankland as ‘internalised colonialism’ and includes:

the organised, harmful behaviours that we do to each other collectively as part of an oppressed group; within our families, within our organisations and within our communities. Lateral violence is the expression of rage and anger, fear and terror that can only be safely vented upon those closest to us when we are being oppressed.^[6]

The notion of lateral violence says that this behaviour is often the result of disadvantage, discrimination and oppression, and that it arises from working within a society that is not designed for our way of doing things.

Examples of lateral violence are gossip, jealousy, feuding, bullying and violence ranging from social, emotional and physical. Most of the work on lateral violence to date in this country has been around links with organizational culture and bullying. However, as we spend more time thinking and talking about the concept we are finding links with other areas, for example: employment retention, social and emotional wellbeing, cyber bullying, organisational failure and of course, the native title system.

So where does lateral violence fit with the criminal justice system? At the moment the research is still embryonic but as I travel around talking to people I am often given anecdotal evidence that suggests a link between lateral violence and involvement with the criminal justice system.

Just recently I was speaking with members of the Koori Court down in Victoria and they told me that much of the violence they see could be described as a manifestation of lateral violence.

When we hear about the long running feuds in communities that spill over into violence, this can be seen as a manifestation of lateral violence as well. You can look at the situation in Yuendumu, for instance, where we have seen a very fractured and marginalised community spill over into conflict and also see elements of lateral violence at work.

Similarly, the Victorian Aboriginal Child Care Agency have 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. This has led to involvement with the criminal justice system.

Lateral violence can also be a factor in family violence. Marcia Langton as 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. Especially the children.’^[8]

But there is still so much work that needs to be done in this area and we need to be very careful and respectful in how we approach it. Firstly, I think it is probably a mistake to reduce all the complexity of violent offending down to the single cause of lateral violence. We know from a lot of evidence that substance abuse, lack of education and employment opportunities, experience of violence or abuse and other underlying factors can all contribute to violent offending.

Nonetheless, I think lateral violence is part of an explosive mix in some cases. Lateral violence helps explain how a history of dispossession, marginalisation and trauma can erupt against those who are closest to us.

Like all concepts, we can spend hours debating theory. This is valuable, and I look forward to seeing more research on lateral violence, however, what really excites me are the practical possibilities.

The first thing we know from our experience in this area is that just naming lateral violence is a powerful first step. I want to start a conversation in our communities about lateral violence and its many manifestations. I hope we can start some of this conversation here today.

In relation to the criminal justice system, I think there are already some good programs under way. In Victoria there is a concerted effort to mediate community disputes to prevent violence from escalating. The Tiwi have long been running a Youth Diversion Program that resolves community disputes. Also, later in the conference we will hear about the Mornington Island Restorative Justice Project. These are types of projects give people the tools to resolve disputes before they result in violence.

But that is only part of the solution. Lateral violence is not just about disputes- it is ultimately about feeling powerless and having no safe way of expressing anger and frustration. This frustration then turns on those in our own homes and our own communities. The bigger picture is therefore how do we address the power dynamics and identify and overcome the causes of lateral violence?

This is the million dollar question. I can only answer this by returning to my original premise- we do this by strengthening our relationships so that they are built on respect, trust and recognition. A common theme that runs through strengthening all of these relationships is cultural safety- creating a safe space that recognises our difference and our strong, enduring culture, and makes us feel valued as part of our community and society.

We are the oldest surviving culture in the world. When I look around our families and communities I see so much resilience and hope. Let’s use this resilience and hope to frame our responses to improve the criminal justice system for Aboriginal and Torres Strait Islander people.

^[1] Law Reform Commission of Western Australia, Aboriginal Customary Laws Discussion Paper (2005) p 94. At www.lrc.justice.wa.gov.au/2publications/reports/ACL/.../Part_05C.pdf
^[2] Queensland Aboriginal Welfare File Part 4, Series 1043, Consignment 1, Box 518, Item 2964, Batch No. 275, Premier’s Department, Co-ordinator General’s Department, Queensland State Archives, Introduction by Hon J. C. Pizzey, M.L.A., Minister for Education of a Bill to Promote the Well-being of Aborigines and Torres Strait Islanders, 1965).
^[3] Stevens, F.S., (ed), Racism: The Australian Experience A Study of Race Prejudice of Australia, Volume 2, Black Versus White, Australian and New Zealand Book Company, Sydney, 1972, p. 163.
^[4] Kidd, Ros, The Way We Civilise, University of Queensland Press, 1997, p. 244.
^[5] Law Reform Commission of Western Australia, Aboriginal Customary Laws Discussion Paper (2005) p 105. At www.lrc.justice.wa.gov.au/2publications/reports/ACL/.../Part_05C.pdf
^{[6] 7} R Frankland, Presentation to Social Justice Unit staff, 14 March 2011.
^[8] M Langton, ‘The end of “big men” politics’ (2008) 22 Griffith Review. At www.griffith.edu.au/griffithreview/campaign/Ed.../Langton_ed22.pdf (viewed 27 June 2011).