Dodson, Mick; Aboriginal Law Bulletin --- "Aborigines & the Criminal Justice System - 'Aboriginal-Police Relations' Conference Speech" [1987] AboriginalLawB 45; (1987) 1(28) Aboriginal Law Bulletin 4

• Aborigines &Amp; The Criminal Justice System
• Aboriginal-Police Relations

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Aborigines & the Criminal Justice System

On October 9, Eddie Betts became the sixteenth Aborigine to die in custody this year. With the recent announcement of a Royal Commission of Inquiry, the issue of black deaths in custody has finally penetrated the national conscience. Aboriginal organisations, notably the Committee to Defend BIack Rights, have brought the issue into the international arena. A report by the British based Anti-Slavery Society to be tabled at the forthcoming Commonwealth Heads of Government Meeting (CHOGM) in Vancouver, fortifies Aboriginal claims of racial oppression. The issue of black deaths in custody strikes at the credibility of the Australian system of justice.

Mick Dodson, Senior Legal Advisor for the Northern Land Council, delivered a speech entitled Aboriginal - Police Relations at the Labour Lawyers' Conference in Perth, late September. In his presentation, he examines the basis of Aboriginal law and explains Its inevitable clash with western concepts of law and order.

Aboriginal-Police Relations

by Mick Dodson

I believe the title of this talk should also carry a double question: are there any and are any possible. This is not a joke: it is a reflection of reality as Aboriginal people see it.

When we talk about relations between Aboriginal people and the police force, we're talking about an example of the way vastly different cultures clash. And were particularly talking about a conflict between Ideas of social control which are poles apart.

Aboriginal traditional societies have existed for thousands of years without need of a police force as such and without a written body of law. Thefts is a system which' works well in its cultural context. The proof of the pudding lies in the fact that it has survived in an unbroken line for many thousands of years.

As with any body of law, It has not remained a constant, but has adapted as Aboriginal people have been forced to adapt-to changes which predate the coming of the non-Aboriginal people, such as climate and food supply. its longevity makes k one of. the success stories of human history.

Aboriginal law has never been written down. It exists as an integral part of the cultures of Aboriginal people across Australia. For non-Aboriginal people, it has the rather patronising title of "customary law". For us, it is the law and no other can replace it.

And the law covers social, cultural, spiritual and even economic behaviour. It governs relationships between people and resolves conflict. It decides marriages and the complex web of obligations that is our traditional society. In short it performs similar functions to non-Aboriginal law.

But it is the very basis of the law which is different. Aboriginal culture reflects the interaction between the people of the present, their ancestors and their environment. Obligations towards the future, in the maintenance of the law, areas important as those to the past.

This places the individual in a different position from the individual in non-Aboriginal society. The importance of the individual is in fact secondary to the importance of the existence, and hence survival, of the group and its cultural obligations.

Aboriginal cultures, be they desert, coastal, mountain or forested plains cultures. focus on the relationship of the group to the land. The land was created - with all its features - by ancestral beings, some of whom then took the form of birds, insects and mammals. These now form the totemic identity of groups of people. Every piece of land is marked with the passage of these ancestral beings and the map of their travels-the "songs" for particular country-are the property of the senior traditional owners. It is the duty of these - owners to care for country. This duty is passed down through families.

Caring for country is an elusive notion to non-Aboriginal people. But it involves making sure the country grows up, thrives and is in suitable physical and spiritual condition to be handed down to future generations of the group. The individual then, is part of a continuum of culture. He or she links the past, the present and the future of the land. This process has been repeated over hundreds of generations and it is through this process-through the strict observation of the law-that the country has continued to thrive. This law is the governing law of the original owners of Australia.

You may gain some insight through these words into the extent of the disruption caused to Aboriginal society by the incursion and wholesale theft of land by non-Aboriginal invaders. In the Northern Territory for example it is only comparatively recently, through the passage of the Land Rights Act and the success of subsequent land claims, that some people have been able to go back and resume their legal responsibility for caring for country. The Act has been the catalyst, in fact, for an unprecedented cultural revival.

I would like you to compare this cultural background with your own. On the one hand, a society working together with a common aim in mind-the common good of the group and its physical and spiritual environment it is a true commonwealth, in fact On the other hand, you have an intrusive culture which feels itself to be superior because of its reliance on the material. It is a society which imposes a body of law and which depends on a specially-employed group of people - police, lawyers, judges, magistrates and prison warders - to see that the law is upheld.

This is the first direct contrast between the two cultures. One has a law which comes from the people and which the people observe. In their terms, non-Ab original law is one that is imposed by a political, bureaucratic, judicial and impersonal system and enforced by a uniformed army.

More importantly, perhaps, yours is a society which has only a limited notion of group responsibility. Your culture has created a cult of the autonomous individual. Children are taught from a very early age to stand up and fight for themselves and accept individual, rather than collective responsibility. Your children are urged to achieve for themselves, to compete, to stand alone.

The result is a society that is fragmented, that has no common purpose. Your distant ancestors-perhaps the pre-Roman Conquest tribes of the British Isles-may well have had a similar relationship with the land and to each other and to the group similar to that experienced by Aboriginal people. They may well have accepted a collective responsibility for their country and lived in the tracks of ancestral beings.

But your society does not do this any more. Your origins on the land have been overlaid with almost 20 centuries of the Western-Judaeo-Christian tradition which emphasises individualism. Even in your relationships with each other and your law. The first Aboriginal people to meet up with your culture might well have thought that there was something fundamentally wrong with a society that is so mistrustful of the individual's ability to keep the law that it has to have a special force to maintain that law. And if we accept that the law reflects the culture from which it springs. perhaps we should also accept that they were and are right.

Be that as it may, these are the facts your society, and all of us collectively as lawyers, have to hear in mind when we are discussing the question of Aboriginal-police relations. You have to recognise that this cultural background applies equally to so-called "urbanised" Aboriginal people as it does to people still living a traditional lifestyle.

The fact that many Aboriginal people have been dispossessed of their land, their culture and their language means little. They have grown up with feeling for their culture and feel distress that they cannot perform true responsibilities in the way their brothers and sisters who have land can ...

People talk about improving Aboriginal-police relations as if it's something for which Aboriginal people and our attitudes are wholly responsible. The heart of any sound relationship involves a level of respect between the parties. Respect and understanding of each others beliefs; culture, lifestyle and very existence. It includes respect for and defence of each others basic human rights.

It is my belief that the core of the problem is total disrespect and lack of understanding one community has for the other. The difficulties stem from the basic cultural differences already mentioned. It is not only a clash of individualism versus a system which identifies itself by individual relationship to the group-it is a clash of law. One law cannot sit with the other. Aboriginal law has strived to adapt and accommodate the new regime of whitefella laws. Sadly whitefella law not only will not come halfway or compromise, it is singularly incapable of doing so. Until there is some meeting of the "twain" the two will never happily co-exist.

This is not a relationship that is based on respect and understanding-it is a relationship that is one sided, brutal, oppressive and unfair.

Meagre attempts at liaison committees. working groups, etc are fruitless. There is no equal footing. Ultimate control Invariably rests with the one party and that party's system of doing things. We need to be equal partners for these strategies to work.

No doubt much of the discussion about this topic has been prompted by Aboriginal deaths in custody. The vast majority of these deaths have been in police station lock-ups or cells and this of course has led to an intensifying of focus on Aboriginal-police relations. There is a danger that in this. process the debate may become so narrowed that instead of getting to the heart of the reasons for and injustices suffered by a dispossessed people for 200 years the exercise may turn into a witch hunt to find a suitable scapegoat to punish for national guilt ...