The Guardian • Issue #1946

The over-representation of First Nations People in the judicial system

The over-representation of First Nations People in the judicial system

Indigenous men celebrating their culture.

This article contains a report on First Nations Peoples deaths in custody, incarceration rates, and police brutality.

The incarceration rates of Indigenous people and their deaths in custody continues to be a national disgrace. It is a problem that the government, both at the state and federal level, alongside the ruling class, is unwilling and incapable of being able to address, let alone solve.

The 1987-91 Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that this disproportionate rate of incarceration is undoubtedly the reason for the higher rates of death in custody, whether it be in prison or police custody. By their own admission, they state explicitly “the economic position of Aboriginal people, the health situation, their housing requirements, their access or non-access to an economic base including land and employment, their situation in relation to education; the part played by alcohol and other drugs – and its effects.”

They continue on by acknowledging that “Aboriginal people were dispossessed of their land without benefit of treaty, agreement or compensation.” Out of the 339 recommendations that have come out of the commission, the vast majority of them either have not been acted upon or have only been partially implemented. The colonial legacy of dispossession and social and economic inequality continues to plague the contemporary Indigenous community.

Despite making up only three per cent of the national population, Indigenous and Torres Strait islander people make up just under thirty per cent of the Australian prison population. This makes Australian Indigenous people the highest per capita incarcerated group in the world. This number jumps even higher when it comes to women, where they make up thirty-four per cent of the prison population, a figure that puts them just above non-Indigenous men.

The situation has not improved over the past thirty years, in fact it is only getting worse. This is despite a slight decrease in the overall prison population. The incarceration rate for Indigenous and Torres Strait islander people has risen forty-five per cent since 1989. According to the Australian Bureau of Statistics (ABS) the male imprisonment rate is 4,682 prisoners per 100,000 Indigenous and Torres Strait Islander adult men, and the female imprisonment rate is 523 persons per 100,000 Aboriginal and Torres Strait Islander adult women.

The Northern Territory continues to have the highest rates of incarceration followed by Western Australia. This high rate of incarceration even extends to Indigenous children. First Nations people make up seven per cent of the general youth population but fifty-four per cent of those in youth detention across Australia. This means that Indigenous Australians are the most incarcerated group in the world per capita.

These utterly disproportionate and despicable levels of incarceration account for the equally disproportionate number of deaths in custody. Since the 1991 Royal Commission, at the time of writing, at least 441 Indigenous people have died in either prisons or police custody. Many of these occurred in police custody where over thirty per cent of the deaths were attributable to failures of the police to follow their own protocols, whether it be not providing adequate medical care, complete neglect, or outright police brutality. This number increases when it comes to detaining women. Only two officers have been brought to trial for any of these deaths.

“We’ve seen this, four hundred and forty-one times now,” Ruby Wharton, a Gamilaraay Kooma woman and activist from the Warriors of the Aboriginal Resistance (WAR) told the crowd at the Black Lives Matter (BLM) rally in Brisbane, “Systemic racism always cancels out the truth. Time and time again, police investigate police.” We can plainly see the government’s Royal Commission has done nothing to improve the livelihoods of Indigenous people.

It is not just the police and prison system that First Nations peoples have to contend with, but also the failings of the judicial system. Alison Whittaker, a Gomeroi woman and legal researcher, pointed some of these failings in an article in The Conversation, citing sub judice contempt (which is comments made in public that could interfere with the proceedings of a trial) as an example:

“Outside of Coroners Courts, there is the threat of sub judice contempt, when media coverage may pose a prejudicial threat to a potential trial.

“This carries a risk for families who speak out about their loved one’s deaths in a way that even implies something happened or someone did something. i canticontempt poses liability to them personally when they speak out, but also could jeopardise their push for justice.

“This puts First Nations peoples at the mercy of what can be raised before a jury, judge or coroner. With lengthy procedural delays, this can also mean a case is hard to talk about publicly for years.”

This only creates a more hostile environment for First Nations peoples seeking justice when they are already besieged on all sides. The entirety of the “justice” system fails to uphold its namesake.

By the government’s own admission in RCIADIC, there is a need for enormous structural change. However, the reforms they have proposed can only get us so far. For genuine change to occur, we must grasp the root of these structural inequalities. Race and class cannot be separated. Their division is entrenched by the racism inherent in the Australian settler-colonial state and its repressive power; a power maintained by the police and the broader prison industrial complex. However, these powers are not insurmountable.

Common Ground, an Indigenous lead organisation, proposes that justice reinvestment and self-determination are the keys to address these systemic injustices. Part of their programme includes:

  • Reinvesting funds from correctional facilities (whether they be prisons or youth detention centres) towards early intervention, prevention, and diversity initiatives.
  • Self-determination over these initiatives with Indigenous-led inquiries into deaths in custody.
  • Greater police transparency and accountability, such as the release of CCTV footage.
  • Reduction of police presence in Indigenous communities.
  • Establishing more courts that involve Elders in the sentencing process.

These are not the only measures that are possible. First Nations peoples, such as Vickie Roach, Nayuka Gorrie, and Robyn Oxley call for the abolition of the prison system in its entirety. At the ninth biannual Sisters Inside conference held in 2018, over 300 women, those with prison experience, academics, community workers, lawyers, and community members among others, advanced the idea of abolishing prisons altogether. As Gorrie wrote in their article for the Guardian UK, “We need to abolish prisons to disrupt a society built on inequality,”

“What was made clear is our society is comprised of and arguably relies on self-sustaining feedback loops. Being black, poor, mentally unwell or non-conforming means different apparatuses of the state violently place you where they think you belong, invariably all these roads lead to incarceration. This is not a mistake. As Angela Davis and other abolitionists will point out’ this is how the system is designed to work. … Abolition pushes us to envision ways of addressing violence and creating safer communities without using forms of harm to do so.”

The CPA and the working class ought to organise and stand alongside First Nations people by supporting these demands and stand in solidarity with popular mass movements to bring an end to these injustices. Last year we saw what this kind of support looks like.

By far the biggest protests of 2020 were the BLM protests across the globe which drew particular attention to the situation in Australia. The similarities between the treatment of African Americans in the US and Indigenous people in Australia are glaring. Both groups face disproportionate incarceration rates, endure far more police brutality, and are far more likely to die in the case of an arrest than the rest of the population. Despite the COVID-19 restrictions, tens of thousands of people took to the streets in protest all across the country. The police had the gall to fine the organisers of the BLM rally in Melbourne. In NSW, the Supreme Court attempted to make the protest illegal before changing its mind at the very last second.

These protests demonstrated that the political will of the people is there, and they are willing to come out in force. Ongoing support and engagement are vital to bringing about change. Pressure on the government needs to be sustained. Yet despite this, government inaction continues.

Prime Minister Scott Morrison said at the time, “As upsetting and terrible that the murder that took place – and it is shocking, that also just made me cringe – I just think to myself how wonderful a country is Australia.” He continued on to say, regarding the protests, that “there’s no need to import things happening in other countries here to Australia. Australia is not the United States.” This is blatantly false and only demonstrates the need for international solidarity.

To continue to turn a blind eye to the Australian context and to treat it as a problem that only happens elsewhere only maintains the problem. To create a more just Australia requires a systemic change that cannot be brought about by the government. It can only be brought about by the working class working in solidarity with Indigenous Australians.

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