Indigenous Law Bulletin
by Judy Atkinson
This article originally appeared in volume 2, number 46 of the Aboriginal Law Bulletin, in October 1990.
We can’t go back. The old law was for the old problems. Now we got this new law – this whiteman’s way. And we got these new problems. This law doesn’t fix them either. It’s no good. What we got to do is put them together – the old and the new. Mix them up. And they’ll be hard and strong like cement.
Harry Daphney Kowanyama
In 1988, amid calls for a royal commission to investigate black deaths in prison cells and police watch houses, Aboriginal women argued that it was also important to consider the level of violent deaths of our people outside of these places. At that time we were concerned that while a death in a watch-house received frenzied media attention, a suicide on the same day, in the same community, was viewed with no concern at all by the authorities. It was considered to be common place. More importantly, levels of violence towards women and children seemed to be rising. A number of rapes of young girls cemented our concern that these were an expression of distress of people living in situations that Paul Wilson has described as ‘violence provoking’.
Although the Royal Commission into Aboriginal Deaths in Custody’s terms of reference are centred primarily on the circumstances surrounding individual deaths in custody and the phenomena of deaths in custody, it was hoped that the Commission would facilitate a process where we would be helped to find ways of putting ‘the old and the new’ laws together. This would have been a natural progression from the Law Reform Commission’s 1986 report, The Recognition of Aboriginal Customary Laws. This has not happened.
Much has been written about the impact of the Australian criminal justice system on Aboriginal and Torres Strait Islander men. Few people want to consider its impact on Indigenous women.
This paper presents some basic statistics and outlines proposals presented to the Queensland Attorney General and others for law reform. It addresses the need of Aboriginal women and children to be heard, for our right to a safe living environment. It acknowledges the two hundred and two years of violent colonial dispossession, of rape and murder, condoned and justified under a patriarchal judicial system which illustrates time and again its inability to provide justice to Indigenous Australians.
Men of all cultures are involved with criminal justice systems more than women. 88% of all custodies in Australia are male. Aboriginal men comprise 29% of all males in custodial care. Aboriginal women comprise almost 50% of all women in custodial care. A large percentage of Aboriginal women are in jail for having killed someone who has been violent to them. Furthermore, almost 90% of Aboriginal women in prison (informal consultation) experienced forms of sexual abuse as children, adolescents and as adults by both white and black males.
In one state, 77% of the inmates in maximum security institutions for juvenile females are Aboriginal girls, while 53% of the inmates in maximum security institutions for juvenile males are Aboriginal boys.
Recent research is just beginning to illustrate the impact of the ‘justice’ system on our women. Hunter writes:
Kimberley Aboriginal males were more likely to die from motor vehicle accidents, accidents or suicide than Aboriginal females. However Aboriginal females were more likely to be victims of homicide.
In 1987, Aboriginal women were the victims of 79% of all chargeable homicides in the Northern Territory. Barber, Punt and Albers state that rape and assault were the most under reported offences in the Queensland Aboriginal community expressing concern that in one town no Aboriginal girl over the age of ten had not been raped.
More Aboriginal women have died from violent assault in a number of communities than all the deaths in custody in the states concerned. For example more women have died from violent assaults in one town in the NT over the past five years than all the deaths in custody in the NT over the same period. Likewise in Queensland, more women have died in one community than all the deaths in custody in the State. A serious concern is that often the cause of death is reported as natural, eg pneumonia, when the woman has suffered a severe beating three days previously, and too often no charges are laid. According to a recent report from the Peninsula, five women have died in the last year through violent assaults and no charges have been laid.
Aboriginal women have no faith in the criminal justice system. The core of the problem is summed up by Cape York women:
If a white woman gets bashed or raped her, the police do something. When it’s us, they laugh. The fellow keeps walking around, everybody knows but nothing is done.
Urban women said, ‘How can we call the police in? They come with their guns drawn and an innocent person gets killed.’ Aboriginal women are ashamed to report rapes and be subjected to the sneering interrogation of young male policemen with their racially prejudiced and sexist questions.
If our women persist and get to court, they have to listen to white male lawyers present arguments that suggest a ‘rough up’ is part of Aboriginal love making (in the case of a pack rape where a woman had a broken nose with extensive cuts and bruising); or that rape is not as hurtful nor considered as serious by Aboriginal women as it is for white women. All too often white male racist and sexist attitudes are contained in the arguments presented, and accepted, in court. The tragedy is that some of our men are now starting to believe such garbage.
Recently a senior Aboriginal male public servant suggested that violence against women and sexual abuse of children was based on customary practice. The Royal Commission has also been used as an excuse not to talk about such things. A senior male member of an Aboriginal organisation suggested that if we continue to talk about these problems we will cause more men to suicide as they worry about what they are doing. These arguments were previously presented to the writer by white male public servants.
Because Aboriginal social control mechanisms (the law) has been fractured and made inconsequential by the invading society, Aboriginal women are too often forced to turn to Australian law, as in policemen, for protection. There are many dangers in this kind of situation. As Martin has pointed out:
[...] the ever increasing interventions of external forces continue to rupture and subordinate the internal mechanisms of social control, and of socialisation, and the consequent chaotic circumstances require ever more staff to deal with it, so perpetrating the cycle.
In a report to the Queensland Office of Aboriginal Women a regional staff member made the following point:
I have found that the majority of physical/sexual assaults against Aboriginal women are not reported. Most women are terrified of the police ‘interrogation’ where anything from a woman’s sexual history to whether she is a fit mother or nor is brought out into the open. Reporting an assault sometimes seems to be just as traumatic as the actual assault.
Recently, a number of underage girls testified in a criminal trial to their alleged long-term sexual abuse at the hands of a senior community policeman. The policeman was defended by the Aboriginal and Islander Legal Services. In court the girls were subjected to the usual discriminatory, degrading cross-examination, which aims to prove that the accused is the victim and that the girls were the abusers. If this experience has done nothing else, it has shown these young women and their mothers that it is futile to seek help or protection from the western criminal justice system.
Increased interaction between the State and Aboriginal society wherein some males are being consulted, provides a venue for individual power bases under the guise of self-management. This in turn dispossesses women of their place in society, thus causing attitudes which promote social disruption and violence. As solutions are found in response to one side of a multi-dimensional problem, further problems are often created.
For example, the decriminalisation of public drunkenness will place Aboriginal women under threat of further violence unless the necessary resources are also provided to deal with men who are drunk, and safe places for women and children are provided. Again, under the new domestic violence legislation (Qld), the police now have the ability to put a perpetrator in the watch house for four hours as a cooling off period. The only interaction Aboriginal men have had with police has been of a negative, violent nature. It is unlikely that Aboriginal men will cool off in four hours, in a watch house cell. Anger will mount and resurface next weekend, or the next, as feelings of powerlessness and frustration are reinforced.
Answers to deaths in cells, high imprisonment rates, violence against women and children, and juvenile problems, will not be found in making cells suicide proof, decriminalising public drunkenness, cooling off periods of four hours in watch house cells, educating police officers and so on. The only real answers are contained in our right and ability to redefine and articulate Law, that is, the mechanisms of social organisation and social control which allowed our society to function in balance and equity to both sexes prior to 1788.
Aboriginal communities must be involved in their own justice mechanisms. Evidence which suggests that deaths in custody are only a minor example of the breakdown of western law and political systems for Indigenous Australians led Bobby Robinson from the Aboriginal unit at Queensland University, Barbara Miller from the Aboriginal Coordinating Council and myself to approach the Attorney General, Dean Wells, earlier this year to present a proposal for law reform in Queensland. The following are extracts from the briefing paper presented to him.
Urgent consideration must be given to the problems created by the present State legislation affecting places like Mornington Island and Aurukun, and the lack of gazetted by-laws in other Trust communities. These by-laws are forms of legislation accessible to Aboriginal communities. They provide a venue whereby people living in a community can consider and make statements about social problems. The previous State government operated on an assimilationist ideology that considered by-laws should only be used for local government purposes. By-laws can be used to address issues of social disorder, as well as land management and local government functions. The ability to make and enforce by-laws should be utilised to facilitate development of new law at a local level, enabling greater local social control and a public forum for making statements about appropriate behaviour.
For example, while the people who sit in the Legislative Assembly in Canberra consider pornography causes no harm, they have not considered the circumstances of young males living in isolated and depressed circumstances in remote Australia. Sometimes such videos, brought in by white men as forms of entertainment, are the only understanding our young men have of mainstream culture. While the rest of Australia has received a message from lawmakers and others in authority that such videos are ‘OK’, there are voices of concern coming from Aboriginal women who say violence and sexual abuse has increased since pornography entered communities. By-laws can be used to ban the importation of such videos, thereby making a statement that these material cultural artefacts of the invading society are damaging to our own.
Many Aboriginal communities now have police aides or community policemen. Community police in Queensland are employed and paid by Aboriginal councils who do not have the capacity to provide adequate training. Training provided by the Queensland State Police Force continues to espouse the ‘enforcement’ mentality. What we need are police (or peace officers) who have skills for involving the community in crime prevention programs, dispute resolution and crisis intervention skills. Women in one community asked for Aboriginal women to be trained to investigate sexual offences, and in another the women asked that community police be able to go to schools to teach children about matters of law. These are the issues law reformers should be responding to.
Within the Anglo-Australian court system power has been abused and the truth has been distorted. Women, particularly, have been subjected to discrimination. Lawyers blame police, police blame lawyers. As white males, both have been instrumental in facilitating and legitimating acts of violence towards women and children, either by their attitudes, inaction or presentation in court.
Western courts are largely the domain of men. We asked that dispute resolution, as it was contained within traditional Aboriginal social control mechanisms, be incorporated in the Aboriginal court system in Queensland. Aboriginal people need to sit in judgment on each other. At present many law and order problems are not dealt with at all. No statements are being made, therefore, that such behaviour is not acceptable. For example, if you bash or rape a white woman, the matter is considered very serious and every effort will be made to charge, convict and imprison you. If you bash or rape an Aboriginal woman, that’s OK. Nothing will happen. When men are charged with an offence they spend most of their time trying to convince themselves and the legal system that they have done nothing wrong. The crime is against the state, not against a person, who becomes a further victim in the court process.
People say no woman wants to face a man who has raped or bashed her. Aboriginal women face such men daily. They are often related to each other. They do not want to see their sons, husbands or fathers go to jail. They just want the violence to stop and be secure in the knowledge that mechanisms are being developed to protect them and their children. They know that not all men are violent. Those who are must receive help.
It is important that the community starts to see and hear what it is doing to itself. Rapes, bashings and other forms of abuse must be dealt with in a manner that allows voices to be heard. People who have been violent must acknowledge what they have done, while the victim must be made to feel her/his hurt has been recognised. People must be heard and seen to be saying, ‘this is not acceptable behaviour.’ Restitution must be decided by the victim and the perpetrator, with support and encouragement from the community. Forms of conflict that facilitate such behaviour must be dealt with within the community, so that the community itself begins to redefine its social control mechanisms.
Communities such as Kowanyama, Aurukun and Lockhart River favour the development of outstations where juvenile offenders in particular could be removed to learn to modify their behaviour, be part of an Aboriginal cultural heritage program and work to pay restitution for the damage they have done. Young offenders often perpetrate crimes with the express purpose of being sent out of the community for a ‘holiday’. When they return their behaviour is often worse. This ‘cycle of abuse’ must be broken.
Mediation could be a sentencing option depending on the severity of the crime. Community Service Orders are preferable to fines and jail but do not work when the offender is simply put in with the Community Development Employment Program (CDEP) work gang to perform the same task as everyone else.
Recently a recommendation was made that the Attorney General’s Department, along with Commonwealth and State Departments, consider funding an Aboriginal and Torres Strait Islander Centre for Community Justice. This centre, staffed by Aboriginal and Torres Strait Islander people, would continue the work done by the Law Reform Commission in its Customary Law Report of 1986 and would also be responsible for developing resource material and running training courses. It could develop a diverse range of relevant programs, including an Aboriginal awareness package for in-service training to judges, magistrates, and others; counselling services for victims of sexual assault; male offender prevention programs; family life improvement programs; community based crime prevention programs; and suicide law education/awareness and re-articulation programs. Such a centre would provide a place where both male and female voices are heard as we work at ways of redefining our Law and mechanisms of social control. It remains to be seen whether the Attorney General’s Department will take these recommendations seriously.
It is interesting to note that where women’s Law Business is strong, and where their voices are heard and listened to, there is little or no violence. In addition, an informal observation is that there is also less grog.
The Royal Commission into Aboriginal Deaths in Custody and other bodies are looking for ways to resolve the fractured social controls of Aboriginal society. The Commission represents attitudes and actions contained within a hierarchical patriarchy that dominates much of Australia. Unless it is able to consider how this patriarchy has subjugated and dispossessed Aboriginal women, any ‘solution’ it offers can only create venues for further oppression, of both Aboriginal men and women.
Judy Atkinson has recently completed her Phd and is Professor of Indigenous Australian Studies at Southern Cross University in Lismore, NSW. She continues her commitment to addressing the issues of trauma in Indigenous communities.
 Wilson, PR (1981), Black Death: White Hands, George Allen & Unwin, Sydney.
 Australian Law Reform Commission (1986), The Recognition of Aboriginal Customary Laws Report No 31, AGPS, Canberra.
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Atkinson, J, (1990), Violence in Aboriginal Australia: Colonisation and its impact on Gender’, The Aboriginal and Islander Health Journal, June/September Editions, Uni of Queensland, Brisbane.
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