The rise of a punitive “law and order” culture in Australia has had a profoundly racial dimension, manifested in soaring rates of indigenous incarceration. The number of indigenous adults held in the nation’s jails has increased for the 11th year in a row — as Crikey revealed in part one yesterday — while over the past decade the indigenous imprisonment rate has outstripped the non-indigenous rate by a factor of 11, ballooning more than 47%. The non-indigenous rate grew 4% in the same period.

This shift towards the use of crime and punishment as a tool of social control — known as “governing through crime” — has led to the rise of a “risk agenda” that concentrates on the risk of crime occurring, not just actual crime. In this society of heightened fear and increased surveillance, punishment is increasingly targeted at those on the periphery. And no group lies more at the periphery than indigenous Australians.

That outcomes for Aboriginal Australians are deteriorating in all but a select few areas has been confirmed by virtually every government report released this year. Here is an extract from just one — the Productivity Commissions latest Closing the Gap report, Overcoming Indigenous Disadvantage: Key Indicators, released in August:

“Nine years after this series was commissioned, there is still a considerable way to go … Wide gaps in average outcomes remain across most indicators. Of the 45 quantitative indicators in the report, for example, available data show improvement in outcomes for only 13 indicators … For 10 there has been no real improvement, while for another seven, including social indicators such as criminal justice, outcomes have actually deteriorated.”

Some of the most shocking indicators are in the area of health, where hospitalisation rates are vastly higher for indigenous men and women than for other Australians.

Ratio of indigenous to non-indigenous rates of hospitalisation
Reason for hospitalisation Women Men
Injuries caused by assault 31
(i.e. the hospitalisation rate for indigenous women is 31 times higher than the rate for non-indigenous women)
Injuries caused by non-fatal family violence assault 31 25
Mental and behavioural disorders 1.5 2.2
Chronic disease:
End-stage renal disease 15 8
Diabetes 5 3.5
Circulatory 2 1.5

According to the same report, indigenous adults indicate having a disability that profoundly or severely restricts core activity at around twice the rate for non-indigenous people. They are also twice as likely to be recent users of illicit substances as other Australians and four times as likely to be homeless.

David Woodroffe, managing solicitor in criminal law at the North Australian Aboriginal Justice Agency in the NT, says the Northern Territory intervention has invested heavily in institutions focused on punishing criminal behaviour, while providing minimal services to help those who turn to crime in the first place.

“There’s more policing in communities — more police stations and police posts — so more people will come to the attention of police, will be charged, get into the [criminal justice] process. But there’s no corresponding in relation to other services … there’s no youth diversion programs, there’s no rehabilitation services, etc. So basically, government’s providing an impetus for detecting crime and prosecuting crime but there’s not the services there for reducing crime or turning people away from it. And that’s why we see, with the lack of services like that, people becoming entrenched in the criminal justice system.”

With Territory jails becoming more and more overcrowded, and the NT projected to have the highest imprisonment rate in the world in a couple of years, the government has announced its solution: a new $495 million prison at Holtze; the largest capital outlay of any NT government.

“Half a billion dollars,” Woodroffe says. “If that was invested in Aboriginal communities in just one area, if that was just health … 99% of Australians wouldn’t object to improving the lot of Aboriginal kids and building schools and hospitals, or improving access to hearing or access to dialysis or helping people learn about diabetes. Virtually every single middle-aged person I speak to, they all have diabetes. None of them are taught simple things about nutrition. Investment in health could make a difference to the lives of so many people, and that’s just one tiny aspect.”

The story is much the same in Western Australia, where jail is often the answer to problems of sickness, poverty and violence — despite widespread recognition that contact with the criminal justice system perpetuates disadvantage and increases the chances of being a victim of violence.

“People are going to jail for things they shouldn’t be going to jail for,” says Dennis Eggington, chief executive of the Aboriginal Legal Service WA. “This includes non-payment of fines, driving offences, offences that are committed because people are sick either with alcoholism, drug abuse or mental illnesses.” Numerous state and territory laws aim to push the most disadvantaged deeper into the shadows of mainstream society, he says.

“Here at the ALS [Aboriginal Legal Service] we see laws that are designed to move Aboriginal people out of sight. These laws are mandatory sentencing laws; these laws are move-on laws; these laws are antisocial laws that all can lead to imprisonment or removal from an area. It’s the vulnerable people, it’s those people who are most disadvantaged, that are most subject to that scrutiny and that over-policing.

“Of course, Aboriginal people are among the most disadvantaged groups in Australia, so those laws by their nature are indirectly discriminatory.”

In Western Australia, 90% of those removed under the state’s notorious Northbridge curfew laws are Aboriginal. Similarly, Aboriginal juveniles make up 90% of those dealt with under the state’s mandatory sentencing laws.

Evidence also indicates courts deal out harsher punishment to indigenous offenders than others. The 2005 report by Hon Dennis Mahoney, Inquiry into the Management of Offenders in Custody and in the Community, found that indigenous offenders in WA were far more likely to be locked up “in the same circumstances and for the same crimes” than their non-indigenous counterparts:

“For all offence types except property offences, indigenous people were more likely than non-indigenous people to receive custodial sentences. For example, for violent offences, compare an indigenous ‘imprisonment rate’ of 23.5% with a non-indigenous imprisonment rate of 7.7%. For driving/vehicle offences, compare an indigenous imprisonment rate of 12.5% with a non-indigenous rate of 2.9% … For [drink driving offences], the indigenous imprisonment rate was 13% compared to a non-indigenous rate of 4%.”

The statistics paint a powerful portrait of a divided society, yet it is a picture of apartheid few are prepared to acknowledge, let alone combat.

“Historically, we’ve always approached indigenous people with different forms of punishment,” says Chris Cunneen, Professor of Justice and Social Inclusion at James Cook University and a criminologist with more than two decades’ experience in Aboriginal justice issues. “Punishment is not just about the act of locking somebody up or the act of imposing a fine or community service order. It’s also an expression of power.

“We know, for instance, that Aboriginal people were subjected to physical punishments like flogging for decades after that ceased to be used for non-indigenous people. The same with public executions. [These practices] were always justified on the basis of race.

“We understand Aboriginality — and race, more generally — through criminalisation … It works in a way that race is not seen as separate from criminality.”

Which again raises the tortured question of how much importance should be attached to the role of history in the present crisis in indigenous Australia. For some — like Harry Blagg, a criminologist of 25 years’ standing and author of the book Crime, Aboriginality and the Decolonisation of Justice — Australia’s colonial history is paramount. What is lacking among criminologists, he says, is an understanding of how the Australian criminal justice system has been used as an instrument of colonisation.

“It’s not a popular position when you work in government, but that’s the one I came up with,” says the former director of studies at the Crime Research Centre in Perth. Blagg worked in Aboriginal crime and justice for two decades before leaving last year to become Professor of Criminology and Criminal Justice at the University of Plymouth, UK.

“We’ve not resolved that fundamental problem: that we established a set of colonial structures and denied the legitimacy of Aboriginal people’s own forms of law and social organisation, and their right to have a big say over what happens in their communities.”

The strategy of criminalising the indigenous population initially promised enormous benefits for the invading power, Blagg says. Above all, it played a crucial role in creating an inverted reality in which the white collective believed itself to be the victim of Aboriginal criminality, and not the other way around.

“First we criminalised Aboriginal people’s resistance to colonisation. We denied that they owned the land that we stole from them and then we imprisoned them when they tried, understandably, to resist the theft of their land,” he says. “It allowed white colonists to conquer and contain the continent … It was the police and the police lock-ups and the courts that represented the frontier between the Aboriginal and non-Aboriginal worlds. It gave a veneer of legitimacy to our strategy of dispossessing Aboriginal people.”

The shallowness of this veneer explains why the criminal justice system has been largely ineffective in indigenous communities, Blagg says. Effective punishment — that is, punishment that reforms and deters — requires legitimacy and authority. The grim truth is that “white justice” has little of either in Aboriginal Australia, he says.

“If contact with the white justice system was to going to decrease levels of violence in Aboriginal communities, it would have done so already,” he says. “The fundamental problem is that there’s no dialogue between Aboriginal systems of authority and our own … Aboriginal people, particularly Aboriginal youth, are just not shamed by the white justice system. They’re not ashamed to have the white values shouted at them in court, they’re not shamed by white police officers turning up at their door and they’re not reformed by the white prison system.”

Soaring indigenous incarceration rates are just one manifestation of the crisis in the relationship between mainstream society and the Aboriginal community, Blagg argues. (And with an indigenous re-imprisonment rate of 58% within 10 years and a 47% retention rate for indigenous students from the beginning of secondary school to year 12, it would appear that as a society we do better at keeping indigenous people in jail than in school, Cunneen points out.)

Getting a grip on any of the issues impacting Aboriginal Australia — health, housing, education, crime and justice, and so forth — requires a genuine decolonisation of the relationships between Aboriginal and non-Aboriginal people. “Australian society and community were created by the destruction of Aboriginal Australia. They will always be opposed until there is a really fundamental reconciliation,” Blagg says.

“We still think that a prison cell is a normal place for an Aboriginal person, and I think that’s institutionally ingrained … It’s still in our collective consciousness that the best thing Aboriginal people can do for themselves is to disappear. To stop being Aboriginal and be like the rest of us.”

Nearly 2½ centuries later, whatever benefits the colonial strategy once promised have been massively overtaken by the costs on all levels — social, economic and political, he says.

“What always strikes me powerfully about Australia is that people talk critically about multiculturalism. Is it working? Is it not working? Well it’s been very successful in Australia. People come from all over; you sign up to Australian values; you integrate. You keep bits of your own culture somewhere, bring it out once a year and have a festival, but largely people become very ‘Australian’.

“The only people who don’t are those people who have been there for thousands of years, and that’s Aboriginal people. But you’ve got to ask why that is.”

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