Rees, Neil --- "Editorial - Cause for Serious Alarm and Affront" [1982] AboriginalLawB 42; (1982) 1(5) Aboriginal Law Bulletin 2

• Editorial-Cause For Serious Alarm And Affront
• Why Aborigines Are Gaoled
• Double Standards
• 'Deviant' Language
• Long Term Solution

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Editorial -

Cause for Serious Alarm and Affront

Neil Rees

In June, the New South Wales Anti-Discrimination Board released a report entitled Study of Street Offences by Aborigines. The findings of the Board are not a surprise, but they are still appalling. The report adds to the pile of material which demonstrates that the criminal justice system in this country oppresses Aboriginal people. Undoubtedly Aborigines have been well aware of this fact for a long time but it has been ohly the past few years that this situation has been starkly presented to the rest of the Australian community.

In the mid 1970s, Dr Elizabeth Eggleston exposed inequalities in the administration of the criminal law. Her work encouraged further research. In 1981 criminologist David Biles reported that the most important factor contributing to marked differences in imprisonment rates in Australia's states and territories was the proportion of Aborigines living in each jurisdiction. Put simply, where there are more Aborigines living in an area, more people end up in jail. The number of Aborigines in jail is so large that the Director of the Australian Institute of Criminology has suggested that Aborigines may have the highest imprisonment rate of any racial group in the world. Perhaps the same comment could' be made about detention rates in children's institutions. A report delivered to the NSW Minister for Youth and Community Services in July 1982 reveals that whilst Aborigines comprise 1.5 per cent of the children in the state, 18 per cent of the population of children's corrective institutions are Aborigines.

Why Aborigines are gaoled

One of the most significant aspects of the Anti-Discrimination. Board's report is that it clearly demonstrates why so many Aborigines are sent to jail. Street offences, and especially language offences, are all too often the cause. The report examines the operation of section 5 of the Offences in Public Places Act 1979 in ten country towns in north-western New South Wales which have a high proportion of Aborigines. This Act, and especially section 5, has been the subject of much controversy. Section 5 provides:

A person shall not, without reasonable excuse, in, near or within view or hearing from a public place or school behave in such a manner as would be likely to cause reasonable persons justifiably in all the circumstances to be seriously alarmed or seriously affronted. Penalty $200.

The section replaced a number of provisions in the old Summary Offences Act such as offensive behaviour and unseemly language, and it reduced the penalty for this category of offence.

The Offences in Public Places Act was introduced with rhetorical flourish. The Summary Offences Act was repealed because, according to the Attorney-General, it `operates in a repressive way against those most vulnerable in our society - the poor, the downtrodden, the homeless and the chronic alcoholic'. The new law was designed 'to draw a line between private morality and the law'; 'to show that the law can have a human face and at the same time protect the community'.

Double standards

The objects of the new law have not been met - at least in the ten towns surveyed. The Board's report exposes double standards which are practised and which result in Aborigines being imprisoned. In the sample period 98 per cent of people convicted of an offence under section 5 were Aborigines. Aboriginal presence in the ten towns ranged from 36.5 per cent to 6.9 per cent of the population. In 61 per cent of the cases the use of unseemly words was the reason for conviction. The range of offending words was narrow ‘fuck’ and ‘cunt’ accounted for 91 per cent of the cases. In 75 per cent of the cases police officers were the persons seriously alarmed and affronted by the use of these words. In the majority of instances the penalty was a fine between $60 and $100. In NSW it is necessary to spend between three and four days in jail to 'cut out' such a fine. Thus an Aborigine using the words 'fuck' or 'cunt' in the presence of a police officer runs the risk of four days in jail for such indiscreet use of the English language.

'Deviant' language

The report goes on to describe research concerning language usage conducted by Dr Paul Wilson in one of the surveyed towns. Half the people questioned used the word 'fuck' often or very often and Dr Wilson found that whites had a higher 'fuck count' than blacks. Police officers admitted to frequent usage of the word which led Dr Wilson to the conclusion that 'the powerful appear to use "deviant" language with impunity while the powerless incur the wrath of thee criminal law'. Whilst this conclusion will not be a revelation to many people it is disturbing when viewed in the light of the findings of the Board concerning behaviour which leads to conviction under section 5 of the Offences in Public Places Act.

The Anti-Discrimination Board report contains much more than an analysis of who-says `fuck' and what happens when you say it. It demonstrates that, despite the laudable intent of the NSW Government, the repeal of the Summary Offences Act, and its replacement with the Offences in Public Places Act has done nothing to reduce the number of Aborigines coming before the courts. They still end up in jail for the same conduct; only the name of the offence has changed. The people involved in the process have not changed and that is where the Board recommends reform. It suggests special training for police in areas with substantial Aboriginal populations, the establishment of a liaison structure between local police and Aboriginal organisations and regular transfers for police posted to Aboriginal towns. Magistrates also receive, attention. The Board recommends the abolition of the practice of sending circuit Magistrates to Aboriginal towns, special training courses which highlight the relationship between Aborigines and the criminal justice system and the introduction of guidelines for imposing fines which should include reference to the means of the offender.

Long term solution

The report concludes by recommending that effective land rights be granted to Aboriginal people in NSW. It is a long term solution to the problems which Aboriginal people face in their dealings with the criminal law. In the meantime Mr Frank Walker, the NSW Attorney-General and Minister for Aboriginal Affairs, should act upon the recommendations of the Anti-Discrimination Board. Imprisonment for the use of language which is now widely used in the community is anachronistic and unjust in the extreme.

The Board's report was preparedd by its legal officer, Chris Ronalds and two Aboriginal law students from the University of NSW, Murray Chapman and Kevin Kitchener. It is an important document, summaries of which may be obtained free of charge by writing to the NSW Anti-Discrimination Board, CAGA Centre, 8-18 Bent Street, Sydney, NSW; 2000.