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Cunneen, Chris --- "Judicial Racism" [1992] AboriginalLawB 44; (1992) 1(58) Aboriginal Law Bulletin 9

Judicial Racism

by Chris Cunneen[1]


There is dearly a widespread and long-held view that judicial racism is a problem. It is a view that is held by many Aboriginal people. Paul Coe has referred to the concern of Aboriginal people that judges and magistrates were not representative of the community and that they were completely out of touch with Aboriginal people, their way of life and their communities.[2] One might question the extent to which the judiciary is either more representative of the community and/or educated in relation to Aboriginal issues twelve years after Paul Coe made the earlier observation. Pat O'Shane has related incidents concerning a NSW magistrate, Mr Quin, who referred to Aboriginal people in Wilcannia as constituting a 'pest race.[3]

How far have we come from the racist stereotyping of a decade ago by magistrates like Quin? Comments by the recently retired NSW State Coroner, Kevin Waller, suggest that such stereotyping is still in operation. Writing in the Sydney Morning Herald,[4] Waller sought to minimise the dimensions and tragedy of deaths in custody. The title of the article was "Let's dispel some myths about Aboriginal deaths in custody." Mr Walle failed to mention that he had been criticised by the Royal Commission for his role in the coronial hearing into the death of David Gundy. Among the more overt examples of racism, Walle finished his article with the following statement:

"As a means of earning respect among non-Aboriginal people, dare I suggest that Aboriginal leaders begin making demands for better education, health and employment, and soft-pedal on the handouts."[5]

I would suggest that this is an example of racist stereotyping for a number of reasons. Firstly, it portrays Aboriginal people as in need of earning respect. The historical amnesia involved in this statement is considerable. In a single phrase it obliterates invasion, colonisation and genocide. It puts Aboriginal people back on the defensive as the cause of their own oppression. Secondly, to suggest that Aboriginal leaders should 'soft pedal on handouts' and instead make demands for better education, health, etc., is almost blinding in its arrogance. It ignores completely the work of community organisations like the medical services, the legal services, child care agencies and educational consultative groups, as well as those Aboriginal people working directly in ATSIC and state departments.

It is little wonder that racism among judicial officers remains an issue of concern. Recently Aboriginal writers have again raised the issue of judicial racism. Bill Craigie from NAILSS noted that one of the principal failings of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was that it did not pay sufficient attention to the institutional racism of the criminal justice system and:

"failed to address the whole question of judicial bias. The question was not even raised for discussion, let alone for recommendations."[6]

Pat O'Shane has also recently stated that "police and prison officers have been the focus of most attention; but it is well to keep in mind judicial officers."[7] She noted that there had been few, if any, follow-up research studies on the racism of judicial officers originally identified by Eggleston, who had argued that racist attitudes were common amongst magistrates and justices of the peace.[8] She also argued that ignorance of the law, and a tendency to believe any police evidence, were important factors with magistrates and justices of the peace dealing with Aboriginal people at a summary level. O'Shane has argued that "there seems to be an assumption that judicial officers, by reason of their status, are not likely to be racist "[9]

Racism, Bias and Discrimination

Often, discussions concerning the judiciary and sentencing use words like bias, discrimination and racism, without defining the terms or noting the differences between such terms. The terms bias' and/or 'discrimination' usually refer to unfair or unequal treatment. In relation to the judiciary, the terms have usually been taken to refer to directly observable differences in sentencing outcomes based on Aboriginality. Although the distinction between direct and indirect discrimination is made in anti-discrimination legislation, such a distinction does not appear to have been taken up when considering judicial decisions. 'Racism' is a far broader category implying the processes through which one group of people are deemed to be essentially different to, and lesser than, those who dominate. It is also a systematic set of both ideas and practices which explain and perpetuate racial division.[10] Racism need not be consciously articulated as a policy or personal belief - it may well be inherent in the structural and routine processes of an institution. It can be thought of in terms of direct and indirect practices. Racism is clearly one reason which explains why so many Aboriginal and Torres Strait Islander people are processed by the criminal justice system.

Feminist approaches to the law can contribute to an analysis of the important conceptual differences between discrimination and racism. Carol Smart has argued that early feminist work had a major objective in empirically challenging the idea of an objective judiciary, that is in showing that women were discriminated against[11] The results of those empirical studies were ambivalent. She makes the point that "the search for straightforward sexism was more difficult than anyone imagined."[12] One can argue that there have been at least some similar experiences in terms of analysing race/ethnicity and the courts, with various studies showing conflicting results. Smart has argued that the belief that racism or sexism could be established through a few simple criteria was overly simplistic and misleading. Firstly, the focus on discrimination or bias was caught within an 'equality paradigm' which maintains the centrality of the dominant. In the case of women, an equality paradigm holds men as the standard against which the other is judged. Similarly, an equality paradigm for Aboriginal people maintains the centrality of non-Aboriginal people and a non-indigenous justice system which, closes off the possibility that different treatment or indeed a different system is what is required. Secondly, there is the presumption that the law is itself something neutral - outside the actions of individuals who might apply it in a discriminatory fashion. Smart argues that this misconstrues the nature of law and the nature of power. If law is seen as part of the relations of power, then it is appropriate to consider it as part of the nature of oppression and part of the system which maintains race relations.

One attempt to look at judicial bias within a positivist framework and to statistically analyse sentencing outcomes by Aboriginality has been the work of John Walker[13] He describes the level of Aboriginal over-representation among prisoners nationally, and argues that:

"... far from being the result of a blatantly biased system, the observed over-representation could actually be the result of accumulations of relatively minor disadvantageous selection processes."[14]

Walker analyses a number of factors including prior record, offence types, the average length of sentences and previous imprisonment. He concludes that:

"... the courts cannot be held to blame for the high rates of Aboriginal imprisonment. On the contrary, they appear to be particularly lenient to Aboriginal offenders..."[15]

In short, the criminal justice system is not likely to be responsible for high Aboriginal rates of imprisonment - it may be merely responding logically and even sympathetically to the offending pattern of Aboriginals.[16] Walker ignores the role of police practices in relation to targeting, arrest, bail conditions, etc, all of which impact on the crucial question of why Aboriginal people appear before the courts in the first place and how they in fact obtain criminal records. In other words, there is a significant slip in Walker's argument from demonstrating the apparent lack of judicial discrimination to the assumption that rates of imprisonment reflect offending patterns. The courts, without displaying any overt bias, may simply be legitimating particular policing practices. There are also the additional questions raised earlier (by Coe and O’Shane) concerning the judicial officer's attitudes to police evidence and their own assumptions about Aboriginal people.

To be critical of Walker's conclusions is not a rejection of empirical work per se. Indeed, empirical studies on the sentencing of Aboriginal and non-Aboriginal people are fundamental. Such studies are particularly important if we remember that the vast majority of court cases are dealt with before a magistrate at local court level (over 90%), and that most of these involve guilty pleas (over 80%). The bulk of court work thus involves magistrates sentencing offenders who have pleaded guilty. Magistrates are the final legitimating point in the criminal justice process. Their function is not to decide the outcome of a case, but rather to impose penalties, which in around two thirds of cases will be a fine. It is also worth noting that in many cases the imposition of a fine for Aboriginal people may be the equivalent of imprisonment because of the inability or refusal to pay.

A very different approach to the question of judicial racism has been that of McCorquodale.[17] In relation to criminal cases he examined, McCorquodale argued that:

"... in nearly all jurisdictions the courts seem to have accepted that there is a continuum which distinguished Aboriginals in various stages of 'sophistication' from a presumably more homogeneous white or non-Aboriginal society... in a way that disadvantages Aboriginals."[18]

Historical and political accounts of the interactions between Aboriginal people and the colonising society have demonstrated the way in which racism structured the decision-making processes of the judiciary. For example, Markus, gives an account of Judge Wells from the Northern Territory Supreme Court during the 1930s, who regarded Aboriginal people as of inferior intelligence and argued that white standards were not generally applicable to Aboriginal people.[19]

It is not difficult to point to cases which one might argue to be contemporary examples of judicial racism. Queensland has provided some recent and notorious examples such as the case of David Barry where McPherson J, with Ryan and Moynihan JJ in agreement, referred to Barry as "a person of low intelligence."[20] The case of Kelvin Condren also provides examples of the way in which racism may define judicial modes of thinking. Ambrose J questioned the Aboriginality of Condren and his mother. Such an argument was used to undermine the validity of expert evidence by claiming that Condren was "part-Aboriginal."[21] In this case the appeal judge assumed the fundamental right to determine who is Aboriginal.

In WA, one can point to numerous comments made by Furnell in 1974 when he was Royal Commissioner into Aboriginal Affairs in that State. More recently, one might consider the judgment of the Full Court of the Western Australian Supreme Court in relation to Robert Bropho and the redevelopment of the Swan Brewery site, and the court's inability to recognise and understand Aboriginal spiritual attachment to particular areas.[22]

In South Australia, Charles has reviewed a number of recent decisions involving Aboriginal people in the appellate courts and states that.

... the colonial perception of Aboriginal people as either 'noble savage' or 'fallen from grace on the way to cultural extinction' still underlies some of the judgments of the South Australian Supreme Court in their sentencing of Aboriginal people.[23]

The previous discussion draws attention to the fundamental issue of who defines, and what is, Aboriginality. The very concept of Aboriginality held by the judiciary may be racist. Aboriginality may be conceived of as a thing which can be measured and evaluated; a thing which individuals can be measured against and declared to be lacking. Most importantly, the judiciary plays a fundamental role in determining what constitutes Aboriginality. It is a view which follows in the tradition of the earlier 'protection' legislation which also legally determined which individuals were Aboriginal. Such determinations of Aboriginality are implacably opposed to notions of self-determination. They search for a western-defined authenticity of indigenous culture which is frozen in time and space.

The 'Royal Commission into Aboriginal Deaths in Custody' and Judicial Racism.

By and large, the RCIADIC ignored judicial racism and bias as issues. However, Elliott Johnston noted that:

"... in certain circumstances Aboriginal people may receive longer sentences for the same offence than non-Aboriginal people."[24]

It was dear from evidence before the RCIADIC that one particular circumstance affecting sentences was the use of justices of the peace (JPs) in WA. Commissioner Dodson noted with alarm the attitudes of JPs, who at various conferences organised by the Commission, referred to Aboriginal people as 'primitive', 'coloured people, 'natives and boys' and 'girls’.[25] He also scrutinised the sentencing practices of JPs and noted that they had little respect for the use of community service orders. Some JPs stated that they sentenced Aboriginal people to 7-21 days imprisonment for drunk offences to "dry them out'.[26]

The RCIADIC conducted a special survey of national corrections during April 1989 to collect data on all 'receptions' of prisoners during the month. The focus on receptions was to counteract the limitations implicit in census data which under-represent persons serving shorter sentences. The national survey revealed that 39.5% of Aboriginal prison receptions that month were for fine default. The high proportion of Aboriginal people entering prison because of failure to pay fines raises serious questions in relation to the level of fines imposed by judicial officers. Commissioner Muirhead had previously recommended that legislation should be introduced which placed a "statutory duty upon sentencers to consider a defendant's means to pay in assessing the appropriate monetary penalty "[27]

Racism is Gendered: Aboriginal Women and the Courts

Any discussion of judicial racism must analyse the way in which racism is gendered in its perspective and application. It is important to consider how Aboriginal women are treated by the courts, as both offenders and victims, and to explore how issues of racism and sexism become intertwined.

Let us begin by looking at the issue of Aboriginal women as offenders and their over-representation in sentenced matters. If we take WA as an example, Aboriginal women made up 67% of all sentenced female prisoners during 1989, compared to Aboriginal men making up 49% of all sentenced male prisoners.[28] In addition to Aboriginal women being proportionately more over-represented than Aboriginal men, there were also significant differences in the reasons for imprisonment between Aboriginal women and non-Aboriginal women. Some 20% of Aboriginal women sentenced to gaol were there for offences related to public order (eg., drunkenness, disorderly conduct). However, less than 3.5% of non-Aboriginal women were in prison for similar offences. Aboriginal women were also more likely to be in prison for assault than non-Aboriginal women (12.2% compared to 1.1%). Conversely 32% of non-Aboriginal women were in gaol for fraud and drug offences, compared to 25% of Aboriginal women.

It could be argued that such figures simply represent different offending patterns of Aboriginal and non-Aboriginal women. But of course such a view begs as many questions as it might answer. One fundamental question which needs to be addressed is why are Aboriginal women being imprisoned on trivial charges? Even if we accept Walker's proposition (noted above), that Aboriginal people do not generally receive longer sentences for the same offences as non-Aboriginal offenders, the question of the extent to which Aboriginal women are brought before the courts and sentenced to imprisonment for minor offences remains. This question again raises the issue of the extent to which the courts simply rubber stamp the process of selective policing for particular offences.

In addition, the question is raised as to why imprisonment is being favoured over non-custodial sentencing options. Johnston has suggested that this may occur because of a "belief held by judges, magistrates and parole authorities that Aboriginal offenders are either less able or less willing to comply with the requirements of non-custodial orders."[29]

Other evidence suggests that it may also occur because of paternalistic racism. Dodson noted that one JP in WA stated that he sentenced Aboriginal women to terms of imprisonment to protect their welfare:

"Sometimes I sentence them to imprisonment to help them. They get cleaned up and fed then."[30]

The treatment by the judiciary of Aboriginal women - as victims of physical and sexual assault - has been discussed by Audrey Bolger[31] and Sharon Payne[32]. Both authors have argued that appeals to Aboriginal customary law have been used in a way which legitimates physical and sexual violence against Aboriginal women. Bolger has argued that while the police response to violence against women leaves much to be desired, there has at least been some recognition of problems in that area and training programs have been put into place. The reaction of the judiciary however, has been quite inadequate. Bolger has referred to a number of Northern Territory cases which occurred during the 1980's where it was accepted by the judge that violence and rape were in some ways acceptable within the Aboriginal community. In R v Narjic[33], the defence suggested that "... it is the custom ... for whatever reason, that wives are assaulted by their husbands [and that the defendant was]... a highly respected member of the community."[34]

In the case of R v Lane, Hunt and Smith[35], the defendants were accused of the rape of a woman who subsequently died. Bolger notes that "... the defence adduced evidence, all obtained from non-Aboriginal males, to show that rape was not a very serious crime in Aboriginal society and by approaching the men and asking for a cigarette the woman may have been seen as inviting the men to join her."[36] The determination as to what is Aboriginal culture or tradition is derived from a male perspective. According to Payne, "quasi-anthropologists and all manner of experts"[37] have been used to justify rape and sexual assault as in some way traditional

Through analysing the judicial reasoning used in such cases, we can begin to appreciate that racism and sexism are intertwined. There is of course considerable room for greater analysis of the link between the way Aboriginal women are treated by judicial officers as a law and order problem to be sentenced to imprisonment for minor offences, and the racist conceptions of the place of Aboriginal women within Aboriginal society.

Judicial Racism and the Royal Commission Recommendations.

On 10 June 1992, a 38 year old Aboriginal woman, Phyllis May, was found hanged in a cell at Macquarie Fields police station in outer Sydney. She had been sentenced earlier that day by a local court magistrate to two months imprisonment for possession of a small quantity of marijuana. The victim had a history of depression and anxiety. The magistrate refused the request of the Aboriginal Legal Service for a pre-sentence report. The ALS has since claimed that at least 5 recommendations of the RCIADIC were breached prior to the death, including: that a custodial sentence was not used as a last resort; the woman had been left alone in a cell; there were no regular checks; no medical assessment was made prior to being placed in a cell; and all dangerous objects were not removed.

How might we interpret this incident in the light of an understanding of judicial racism? It seems apparent that the results of the RCIADIC place serious

responsibilities on magistrates in relation to the imposition of custodial sentences on Aboriginal people. It can be argued that the judiciary has an ethical and professional responsibility to at least be aware of the RCIADIC's recommendations, particularly as many of them impinge on sentencing practices. Yet many ALS office managers, field staff and solicitors from a number of jurisdictions have expressed alarm at the unprofessional and contemptuous manner in which reference to the recommendations have been swept aside by magistrates during hearings. How seriously can the magistrate have considered the recommendations in the case of Phyllis May if the ALS was refused the opportunity to prepare a pre-sentence report?

Pat O'Shane stated recently that

"In imposing penalties judicial officers are expected to take into consideration the background, personal and familial circumstances of a defendant. Usually, but not always, issues of family breakdown, ill health, lack of employment, and so on, are considered as mitigating factors. The late Mr Justice Murphy went even further in relation to Aborigines, and said, in the case of R v Neal [(1982) 149 CLR 305], that when dealing with Aborigines, courts should have regard to the entire history of Aboriginal-White relations since 1788, as mitigating factors. Statistics on penalties suffered by Aborigines show that Courts are not heeding Murphy's words in that case."[38]

While I respect Murphy's view that the processes of colonialism should be seen as mitigating factors in determining sentence, we should also be aware that judicial officers are in a position to impose their own interpretations of history and culture. Indeed, the South Australian examples, and the cases relating to rape and sexual assault in the Northern Territory, show how particular racist conceptions of history and culture can be used to decide quite fundamental questions in relation to what is and who is Aboriginal. The judiciary remains in a powerful position to legitimate a range of racist concepts concerning indigenous people.

[1] I would like to thank Jason Behrendt, Katrina Budrikis and Gary Jauncey who provided some of the information used in this paper. This paper is a shortened version of one delivered at the Australian Institute of Criminology Conference, Aboriginal Justice Issues, Caairss, 23-25 June 1992.

[2] See Coe, P., "Aborigines and the Criminal Justice System" in Aborigines and the Criminal Law in New South Wales, Proceedings of the Institute of Criminology, Sydney University Law School, 2-7-80.

[3] See O'Shane, P., "Aborigines and the Criminal Justice System" in Aborigines and the Criminal Law in New South Wales, op cit.

[4] Walter, K, "let's dispel some myths about Aboriginal deaths in custody", Sydney Morning Herald, 13-3-92, p. 11.

[5] Ibid

[6] Craigie, B., "Aboriginal People and the Criminal Justice System in the 1990s" in Cunneen, C, (ed) Aboriginal Perspectives on Criminal Justice, Monograph Series No 1, Sydney University Institute of Criminology, Sydney,1992.

[7] 0'Shane, P., "Aborigines and the Criminal Justice System" in Cunneen, C,(ed), op cit.

[8] Eggleston, E., Fear, Favour or Affection, ANU Press, Canberra 1976

[9] O'Shane, P., "Aborigines and the Criminal Justice System" in Cunneen, C, (ed), op cit, p.6.

[10] Cowlishaw, C. Black, White or Brindle, Cambridge University Press, Melbourne,1988, pp245-248.

[11] Short, C, "Feminist Approaches to Criminology or Postmodern Woman Meets Atavistic Man" in Gelsthorpe, L, and Morris, A., (eels), Feminist Perspectives in Criminology, Open University Press, Milton Keynes,1990.

[12] lbid, p.79.

[13] Walker, J., "Prison Cells with Revolving Doors: A Judicial or Societal Problem", in Hazlehurst, K., (ed), Ivory Scales. Black Australians and the Law, New South Wales University Press, Kensington,1987,pp.106-117.

[14] Ibid P.110.

[15] Ibid

[16] Ibid, p.114

[17] McCorquodale, J., 'Judicial Racism in Australia? Aboriginals in Civil and Criminal Cases', in Hazlehurst, K, (ed), op cit

[18] Ibid, p,43.

[19] Markus, A, Governing Savages, Allen & Unwin, Sydney,1990.

[20] Behrendt, J., "Prison as a Death Sentence: The Case of David Jason Barry in Cunneen, C., (ed) op cit

[21] Caruana, C, 'Trial by Endurance’, Aboriginal Law Bulletin Vol 2(41), 1989, p 4-6. ([1989] AboriginalLB 58; 2(41)pg4)

[22] Churches, S., "Aboriginal Heritage in the Wild West" Aboriginal Law Bulletin, Vol 2(56), 1992, p9-13 ([1992] AboriginalLB 27; 2(56)pg9)

[23] Charles, C, 'Sentencing Aboriginal People in South Australia', Adelaide Law Review, Vol 13, No 1, 1991, p.90.

[24] Johnston E, National Report, Royal Commission into Aboriginal Deaths in Custody Vol 1, AGPS, Canberra 1991, p217.

[25] Dodson, P., Regional Report of Inquiry into Underlying Issues in Western Australia, Royal Commission into Aboriginal Deaths in Custody Vol 2, AGPS, Canberra 1991, pp.111,116.

[26] lbid, p.125.

[27] Muirhead, J.H., Interim Report, Royal Commission into Aboriginal Deaths in Custody, AGPS, Canberra 1988, p.24

[28] O'Dea D.J., Regional Report of inquiry into Individual Deaths in Custody in Western Australia, Royal Commission into Aboriginal Deaths in Custody Vol 1, AGPS, Canberra 1991 p.163

[29] Johnston E, op cit, p.217.

[30] Dodson P., op cit pl 6.

[31] Bolger, A., Aboriginal Women and Violence, North Australia Research Unit (ANU), Darwin, 1991.

[32] Payne, S., "Aboriginal Women and the Law" in Cunneen C., (ed) op cit.

[33] Supreme Court of the Northern Territory 1988, Transcript of Proceedings, R v Dennis Narjic, SCC Nos 108, 109 and 110 of 1988.

[34] Ibid., pp.20-21.

[35] Supreme Court of the Northern Territory 1980, Transcript of Proceedings, R v Burt Lane, Ronald Hunt and Reggie Smith, SCC Nos 16-17, 18-19 and 20-21 of 1980.

[36] Bolger, A, op cit, p.81.

[37] Payne, S., op cit.

[38] O'Shane, P., "Aborigines and the Criminal Justice System" in Cunneen C,(ed) op cit, p6.

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