Bill, Emily --- "Indigenous People, Crime and Punishment" [2014] UTasLawRw 10; (2014) 33(1) University of Tasmania Law Review 185

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Indigenous People, Crime and Punishment

Thalia Anthony

Australia: Routledge, 2013, pp 248, ISBN 9780415668446, $125

The challenges confronting post-colonial Indigenous populations within Australia demonstrate that the repercussions of Anglo-European settlement continue to confront the nation. The legacies of colonisation see Indigenous communities plagued by low life expectancy and literacy rates, high rates of unemployment and increased conflict with the legal system. Despite attempts by successive government to address these concerns, it is clear that such legacies are not easily ameliorated by government policy, legislation or judicial activism. Indigenous People, Crime and Punishment explores the challenges faced by Indigenous people within the legal system, primarily considering the role of sentencing courts.

In Indigenous People, Crime and Punishment, Thalia Anthony examines how an offender’s indigeneity is weighed by the courts, considering sentencing remarks and decisions primarily in New South Wales, the Northern Territory and Queensland. Throughout the text, Anthony weaves sociological and criminological theory with case law to demonstrate the flawed nature of 'recognition' as a means of addressing Indigenous disadvantage. A main theme throughout is the inconsistent manner in which indigeneity is acknowledged, based on an inevitable misrepresentation of culture that is filtered through Anglo-Australian understandings. Recognition, Anthony argues, acts as another means through which appropriate and inappropriate Indigenous expressions are dictated and ‘white’ superiority is reinforced.

Anthony starts by tracing the historical context in which the common law system continues to perpetuate the effect of colonisation. The legal fiction of terra nullius justified the imposition of Anglo legal principles, which legitimised violence on the Indigenous population as punishment. Arguing that the indigeneity of an offender played a role early on in colonisation, Anthony draws on a continuation of the recognition theory to illustrate that the manner in which indigeneity is recognised by sentencing courts fluctuates, diverging from sympathy to reprimand. Whilst acknowledging the role courts play in the over-incarceration of Indigenous people, the text concludes that the process of recognition is not limited as either a mitigating or aggravating factor. It is a way in which the judiciary reinforces 'acceptable forms of Indigenous existence' in the broader context of imposing appropriate 'white' social norms.

The second part of the text grounds Anthony’s argument by examining flawed judicial responses to particular expressions of indigeneity. Anthony illustrates the paternalistic pattern of recognition where acknowledgement is filtered through ‘white’ understanding of ‘appropriate’ or ‘inappropriate’ cultural activities. Cases in the context of customary marriage illustrate the contradiction, as the interests of the Indigenous community are subjugated to the perceived interests of broader society. Further demonstrating legal inconsistencies, Anthony charts the judicial progression from leniency to denunciation regarding traditional punishment. Previously a mitigating factor, it has been transformed into a predominantly negative one with traditional punishment, such as exile or shaming, largely considered to be an unsuitable cultural expression.

In the concluding chapters Anthony explores how broader societal misunderstanding – ‘white anxieties’ - inform the narrowed judicial recognition of indigeneity. The pervasive narrative of dysfunction surrounding Indigenous communities has a paradoxical consequence, in that where Indigenous communities are perceived to be in a state of 'hopelessness' the court is likely to consider their culture to be negligible. Anthony further considers the subjective nature of recognition in the context of Indigenous anti-establishment activities, demonstrating that the judiciary has retreated from acknowledging the ‘legitimate political grievance’ of offenders and now considers such an offence without racial context.^[1] Thus, selective recognition determines whether indigeneity is considered with sympathy or derision in the sentencing process.

Overall, Indigenous People, Crime and Punishment is an engaging multi-disciplinary text. By weaving together a substantive body of law with criminological understanding, Anthony anchors the role of recognition in the sentencing process in a broader social and historical context. Illustrated by recent and relevant cases, legislative reforms and policy changes, each chapter builds logically on the next to culminate in a persuasive argument to the flawed and contradictory process of recognition in sentencing. The narrowed focus of the text, predominantly considering a single theory in a single state jurisdiction, allows it to achieve a depth of analysis not possible for other more general works in this field.

However, the text could be improved in a number of ways. Anthony establishes a strong criticism of recognition, but her argument is undermined by the absence of proposed improvements to the current approach. The possible alternatives to recognition offered are brief and lacking in depth, with their inclusion in the final chapter presenting as an afterthought. The work would have benefited both from the development of these ideas and also greater cohesion with the substantive body of the text. This would also have provided an opportunity to explore and compare other post-colonial jurisdictions with more depth.

Indigenous People, Crime and Punishment also confronts a number of minor stylistic and structural issues. Whilst it is acknowledged that Anthony challenges an inherently emotive subject, the language used throughout the work can occasionally be a barrier to the reader: the text lacks a consistently neutral tone. The fusion of sociological theory and legal analysis provides greater depth to the text but the expense is often an awkward and jarring combination of phrases and concepts. Furthermore, on a structural level there is a high level of repetition between chapters. While this serves to bolster the argument presented to the reader, and perhaps would make the vignettes amendable to be read individually, it does detract from the reader’s engagement with the text.

Ultimately, Indigenous People, Crime and Punishment achieves its objective of illustrating the role of the in-court process of recognition that impact on the overrepresentation of Indigenous people in the criminal justice system. The text makes a meaningful contribution to the field by fusing existing thought with judicial trends to illustrate the consequences of a core assumption in Anglo-Australian Indigenous relations. Whilst it is primarily an academic text for the fields of criminology and criminal law, it also has important policy implications beyond the criminal justice system.

Emily Bill^[∗]

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^[1] Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, 319.

^[∗] Final year BA-LLB (Hons) student at the University of Tasmania and Board Member of the University of Tasmania Law Review for 2014.