Conflict, Politics and Crime

Aboriginal Communities and the Police

Chris Cunneen

• Publisher: Routledge
• Year: 2020
• Print ISBN:
  9780367717773
• eBook ISBN:
  9781000256635
• Topic: Social Sciences
• Subtopic: Social Policy
• Index: Social Sciences

Aboriginal people are grossly over-represented before the courts and in our gaols. Despite numerous inquiries, State and Federal, and the considerable funds spent trying to understand this phenomenon, nothing has changed. Indigenous people continue to be apprehended, sentenced, incarcerated and die in gaols. One part of this depressing and seemingly inexorable process is the behaviour of police.

Drawing on research from across Australia, Chris Cunneen focuses on how police and Aboriginal people interact in urban and rural environments. He explores police history and police culture, the nature of Aboriginal offending and the prevalence of over-policing, the use of police discretion, the particular circumstances of Aboriginal youth and Aboriginal women, the experience of community policing and the key police responses to Aboriginal issues. He traces the pressures on both sides of the equation brought by new political demands.

In exploring these issues, Conflict, Politics and Crime argues that changing the nature of contemporary relations between Aboriginal people and the police is a key to altering Aboriginal over-representation in the criminal justice system, and a step towards the advancement of human rights.

1
Introduction

This book is an analysis of policing in Indigenous communities. (I have used the terms ‘Aboriginal’, ‘Indigenous’ and ‘Aboriginal and Torres Strait Islander’ interchangeably throughout the text.) The book is not concerned with the institution of policing per se, nor does it rest on an essentialist view of the inherent ‘nature’ of Indigenous societies or cultures as monolithic or static. Rather it seeks to explore what is particular about the relationship between the institution of policing and Indigenous communities in Australia within a historical and contemporary framework.

Poor relations between police forces and Indigenous communities throughout Australia have been a regular source of local, national and international criticism of the failure of governments to improve standards of policing and eradicate racist behaviour in public institutions.¹ One of the most extensive royal commissions in the history of Australia—the Royal Commission into Aboriginal Deaths in Custody—was established after numerous deaths in police and prison custody. After an exhaustive inquiry into 99 deaths (63 of which were in police custody) Commissioner Elliot Johnston concluded the following:

Let me say at once, it is my opinion that far too much police intervention in the lives of Aboriginal people throughout Australia has been arbitrary, discriminatory, racist and violent. There is absolutely no doubt in my mind that the antipathy which so many Aboriginal people have towards the police is based not just on historical conduct but upon the contemporary experience of contact with many police officers (Johnston 1991a, vol. 2, p. 195).

It is perhaps a similar point that Aboriginal writer and ex-prisoner, Kevin Gilbert, had made a decade and a half before the Royal Commission: ‘The real horror of Aboriginal Australia today is locked away in police files and child welfare reports. It is a story of private misery and degradation, caused by a complex chain of historical circumstance, that continues into the present’ (Gilbert 1978, pp. 2–3).

Numerous government inquiries over recent years have investigated the factors impacting on relations between Indigenous people and the police. Indeed, the issue has been widely canvassed since the early 1980s. Many of these reports involved substantial recommendations—the most extensive of which was the Royal Commission into Aboriginal Deaths in Custody and its 339 recommendations, many of which were directly related to policing matters.² There is also a substantial and growing body of academic literature which refers to various aspects of Indigenous–police relations. While there are gaps in the research which need to be remedied, overall it is clear that considerable resources have gone into identifying various aspects of the relationship between Aboriginal and Torres Strait Islander people and criminal justice agencies. Yet, despite the plethora of inquiries, reports and their respective recommendations, the level of over-representation of Indigenous people in the criminal justice system has not significantly improved, and the issue of poor relations between police and Indigenous people remains as significant as ever.

Given the body of existing literature, what can another book contribute that is new to our understanding of policing in Indigenous communities? The answer to this question lies, first, in the theoretical framework which is used to consider the role of policing Indigenous communities; second, in the detailed examination of particular policing practices which provide an insight into the distinct nature of the relationship between police and Indigenous people; and, third, in delineating the requirements for effective political change to provide for the realisation of Indigenous human rights.

The central argument of this book is that the fundamental right of Indigenous self-determination is the foundation for developing respectful and effective policing in Indigenous communities. It is also argued that the relationship between police institutions and Indigenous communities has been one which has denied the human rights of Indigenous people in a number of areas besides the right to self-determination. In particular, rights to racial equality in legal processes and rights designed to protect individuals caught up in the criminal justice system have been routinely ignored in the policing of Indigenous people.

At a broad level, policing is a state activity fundamentally captured within the wider historical trends of colonisation and nation-building, which occurred at the expense of dispossessed Indigenous peoples. Thus the effective expression of Indigenous self-determination is intimately connected with the process of decolonisation. The relationships created between institutions of the nation-state and Indigenous peoples have been forged within the context of a colonial political process and a colonial ‘mentality’. Those processes have relied on treating Indigenous people as people to be excluded from the nation-state. Particularly in more recent periods, criminalisation has played an effective role in this process. Ultimately, self-determination is thus directly linked to a process of decolonisation: both decolonisation of institutions and decolonisation of the colonial construction of Indigenous people as ‘criminals’.

While much has been written in Australia on Indigenous people and the criminal law, little of that literature has concerned itself with theorising the relationship between the processes of colonisation and criminalisation, and in particular the role of police in this process. It has been the work of a few historians, rather than criminologists or sociolegal theorists, which has contributed most to our understandings in this area (see for example, Finnane 1994; Goodall 1982, 1990b, 1996; Haebich 1992; McGrath 1993). Certainly, some Indigenous writers have also drawn the links between crime, criminality and colonialism. Paul Coe noted two decades ago:

Before dealing with specific aspects of the relationship between Aboriginals and the police, it is necessary that I emphasise to you how an understanding of the 200 year history of the oppression of Aboriginal people by Europeans is vital to understand Aboriginal relationships with the criminal law [today]. Almost 200 years ago the Europeans invaded this continent, stole the land from Aboriginal people without compensation, obliterated our culture and began a systematic and sustained campaign of oppression of our Aboriginal people (Coe 1980, p. 14).

Integral to an understanding of that history is the policy of genocide in its various manifestations, including mass murder, the removal of children and the policy of assimilation. ‘The reason for emphasising genocide… is to reinforce the point that the present relationships between Aboriginal people and the legal system with the police as agents can only be understood in the light of two centuries of oppression of Aboriginal people’ (Coe 1980, p. 15).

Roberta Sykes has also referred to the way questions of crime and criminality take on a very different perspective for Aboriginal and Torres Strait Islander people (Sykes 1989). When theft of the land, dispossession and discriminatory legislation are considered, the answers to the questions of ‘Who is the criminal?’ and ‘What is justice?’ take on a different meaning. As Sykes notes, even if one accepts western definitions of crime, it is necessary to analyse how criminogenic conditions in Aboriginal communities were created. At least part of the answer can be found in the practices and policies of colonisation. Similarly, the contemporary denial of human rights and the extraordinary rate of imprisonment can be related to social, economic and political processes established as a result of colonisation.

Within such an interpretive framework, Aboriginal people can be regarded as political prisoners. As the Queensland Aboriginal Coordinating Council stated in a submission to the Royal Commission into Aboriginal Deaths in Custody:

In fact, many Aborigines feel they are political prisoners—gaoled by the discriminatory laws of a racist society. A society that’s very foundation is illegal… Traditional Aboriginal lore has largely been replaced by white law, Aboriginal custom and religion much interfered with by white society’s rules, priorities and lifestyle, traditional economies have been destroyed by the theft of Aboriginal land, and Aboriginal sovereignty and self-determination has been denied (Aboriginal Coordinating Council 1990, p. 44).

It has also been argued (unsuccessfully) that Australian courts have no jurisdiction to determine matters involving Aboriginal people. Legal precedent establishing Anglo-Australian jurisdiction over Indigenous people stretches back in time from the Murrell case in 1836 to the more recent matter of Walker before the High Court in 1994.³ The arguments presented by Indigenous people in these matters have fundamentally questioned the jurisdiction of Australian courts and inevitably lead to a consideration of the competing claims for Commonwealth and Indigenous sovereignty. Thus the process of colonisation and dispossession, and the lack of recognition of Indigenous customs and law, unavoidably politicises the relationship between Indigenous people and the criminal justice system. Irrespective of Commonwealth assertions of legitimate sovereignty, the criminal justice system is seen by many Indigenous people as the justice system of the colonial society.

Outside Australia there has been some criminological literature which links crime and criminality with politics and power. While it is not the place to review that literature here, it is worth noting that writers such as Bottomley (1979) and Platt (1975) have argued that ‘crime is political’ in the sense that the legal system is based on power and privilege. Platt noted that the ‘state and legal apparatus, rather than directing our investigations should be the central focus of our investigation as a criminogenic institution, involved in corruption, deception and crimes of genocide’ (Platt 1975, p. 103). More recently, Cohen has called for a change in the criminological agenda to take account of the subject of crimes of the state and the violation of human rights (Cohen 1993, pp. 97–115). Such a call has particular resonance in Australia with the finding of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families that the forced removal of Indigenous children constituted genocide (NISATSIC 1997).

Some writers on law and crime have theorised the state as an instrument of colonialism (Lopez-Rey 1970; Sumner 1982; Bird 1987). Sumner argued that an historical perspective on criminal law ‘must inevitably turn us towards colonialism… crime is not behaviour universally given in human nature and history, but a moral-political concept with culturally and historically varying form and content’ (Sumner 1982, p. 10). Similarly, Lopez-Rey noted that the serious crimes of genocide, war crimes and crimes of the state are neglected as subjects for analysis. In addition, contemporary criminology tends to define crime as a socioeconomic or psycho-psychiatric entity rather than as primarily a sociopolitical entity (Lopez-Rey 1970, p. 234). One of the few Australian studies to directly link Aboriginal over-representation in the criminal justice system with colonialism has been that of Bird. She has argued that Aboriginal crime is a sociopolitical construct within the context of colonisation (Bird 1987), thus placing the question of colonialism central to any understanding of the relationship between Aboriginal people and Anglo-Australian law (see also, Bird and O’Malley 1990).

There is a widespread understanding that police in Australia have acted as the ‘hard edge’ of colonial power in terms of enforcing non-Indigenous legal relations. This in itself provides us with only limited understanding of how such power is utilised, or indeed how it might be resisted, nor does it address the broader theoretical concerns of the nature of policing in Aboriginal and Torres Strait Islander communities. While this book argues for recognition of the continuities in policing from an earlier colonial period, it does so within the development of a particular theoretical framework. The development of that theoretical framework begins with the posing of a number of questions. How do we conceptualise the policing function as a mediatory activity between the nation-state and Indigenous peoples? How do we describe the relationship: Is it colonial? neocolonial? postcolonial?

Colonisation is the process of subjecting a particular cultural or territorial group of people to the control of another group. It is a process which necessarily involves the exercise of power and a range of political strategies to ensure subjection. It is a process which implies exploitation, violence and cultural domination. It is a process which implies resistance on the part of those being dispossessed and expropriated. Finally, colonisation is an ongoing process. The colonisation of Australia did not simply happen when the British landed in Australia at the end of the eighteenth century. That was when European colonisation began in Australia. The process has evolved and developed, not without change, through the nineteenth and twentieth centuries.

Colonialism set in motion a process of invasion, settlement and nation-building which fundamentally altered the lives of those people living in Australia who became known as Aborigines. These processes disrupted existing economies, political and religious institutions and cultures, and disrupted the modes of governance through which the Indigenous peoples of Australia lived. This colonial framework has profound implications for understanding both who Indigenous peoples are and their relationship with the Australian nation-state today. In the Australian context, ‘indigenous’ refers to the descendants of the inhabitants of pre-invasion Australia, who constitute culturally distinct groups which are a minority in the society which was born of colonisation. Indigenous status derives from the ancestral roots with land and culture which predate the dominant society. They are peoples by virtue of distinct cultures, languages and laws which tie individuals into socially cohesive units of extended families, tribal groups and nations.⁴ The concept of colonialism provides an overarching framework for this book, the conceptual tool for understanding the relationship between Indigenous people and the institutions of the Australian nation-state.

I have used the notion of ‘neocolonial’ to refer to a particular moment in the transformation of colonial practices. Between the first Commonwealth/State Native Welfare Conference in 1937, when ‘absorption’ (assimilation) became the accepted principle underpinning government policy, and the 1967 referendum, where constitutional amendments permitted the Commonwealth Government to make laws for Aboriginal people, Indigenous people became ‘citizens’ of the nation-state known as the Commonwealth of Australia. Of course, in a formal sense Indigenous people had been British subjects by virtue of having been born in Australia, and after Commonwealth legislation in 1948 were automatically Australian citizens. Yet, as Chesterman and Galligan (1997) have forcefully argued, this citizenship amounted only to a ‘formal shell’ under which lay the systematic exclusion of Aboriginal people from the rights, entitlements and privileges of citizenship through a mosaic of discriminatory laws and administrative practices.

However, during the 1950s and 1960s overtly discriminatory legislation which denied active citizenship to Aboriginal people began to disappear. The 1967 referendum provides a convenient marker in the process of dismantling the racist legislative regimes which had excluded Indigenous people from the rights and entitlements which most other inhabitants of Australia took for granted. My argument is that this transformation over a number of years had particular ramifications for understanding policing. Full citizenship rights for Aboriginal people implied at the very least the application of the principle of equality before the law.⁵ ‘Aborigines’ were no longer to be viewed as a race apart in the legislative framework which governed the behaviour and entitlements of individuals, and during this period became citizens with rights to be treated in a non-discriminatory manner. Some aspects of policing also changed. White (1997) has argued that it is the apparently rational and formally ‘racially neutral’ character of modern policing which differentiates it from previous involvement in warfare and protection policies. Although Aboriginal reserves and settlements have been ‘deinstitutionalised’ in the post-protection period, in practice police surveillance and intervention have provided for a new form of institutionalisation where the community itself comes to resemble a ‘total institution’ (Edmunds 1989, pp. 104–5). In a slightly different context, Rose (1996) has referred to this process as ‘deep colonising’. She notes that although the formal relations between Indigenous people and the colonial state have changed since the 1960s, colonising practices are still deeply embedded within institutions—even in those institutions which are meant to reverse the processes of colonisation. Rose is specifically referring to land rights legislation. However, her argument that ‘colonising practices embedded within decolonising institutions must not be understood simply as negligible side effects of essentially benign endeavours’ has resonance for understanding policing during the contemporary period of formal equality (Rose 1996, p. 6).

Similarly, Bird and O’Malley (1990, p. 40) have noted that although ‘official’ colonialism has been replaced by new government policies of self-determination, the ‘colonial relationships of superiority and inferiority established over a long period are still powerful’. Colonial practices are not simply p...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• List of acronyms
• List of tables
• 1 Introduction
• 2 The criminalisation of Indigenous people
• 3 The nature of colonial policing
• 4 From over-policing to zero tolerance
• 5 Terror, violence and the abuse of human rights
• 6 Police culture and the use of discretion
• 7 Policing Indigenous women
• 8 Governance and the policing of contested space
• 9 The reform of policing policies
• 10 Policing and postcolonial self-determination
• Notes
• Bibliography
• Index