But I reckon the worstest shame is yours
– Kevin Gilbert

Last week actor David Gulpilil was sentenced to twelve months prison (seven months suspended) for assaulting his wife. It was a high-profile case. Perhaps, you might argue, because domestic violence is a serious and ongoing issue in Australia. Or possibly because Gulpilil is a celebrity, and his personal life is seen as in some way belonging to the public domain.

On the other hand, you could argue that the Gulpilil case drew so much attention because Gulpilil is Aboriginal and, as the government frequently reminds non-Aboriginal people, Aboriginal men beat their wives. This line of reasoning could also explain why Gulpilil received a prison sentence whereas other Australian men, such as Matthew Newton, receive none.

The number of reported incidences of domestic violence within Indigenous communities is higher than those reported in the rest of Australia. Not because Indigenous people are more inclined to violence, as is often implied, but because along with the after effects of dispossession, Indigenous people are under constant surveillance; for every twitch and movement, there is a form that must be filled out.

This is not to deny or diminish the experiences of Indigenous women – of any women – who have been the victims of violence.

But it is to say that family violence and drug and alcohol abuse are treated differently when the guilty party is Indigenous.

Twenty years on from the Royal Commission into Aboriginal Deaths in Custody, which also examined the over-representation of Aboriginal people in the criminal justice system, the penal landscape is largely unchanged. In fact, in the past decade, the incarceration rate of Indigenous Australians has leapt 50 percent; as a result:

Indigenous people now make up 26 per cent of the prison population despite making up just 2.5 per cent of the Australian population.

In Western Australia and South Australia, indigenous people [are] 20 times more likely to be jailed.

Almost 7,600 indigenous Australians were behind bars in June 2010, 91 per cent of them male.

Within Australia, ‘Indigenous people are being imprisoned at a rate 14 times higher than non-Indigenous people.’

Much of this over-representation can be explained through a simple equation: a comparison of crimes and perpetrators that are pursued with those that aren’t. The Law Reform Commission of Western Australia writes, ‘It is sometimes assumed that the only reason Aboriginal people are over-represented is because they commit more offences. However, “crime statistics do not measure the incidence of criminal conduct as such, but rather who gets apprehended and punished for it, which is a very different thing”.’ To put it precisely: over-representation is not the same as an increase in crime.

As a rule, the Australian criminal justice system’s treatment of Indigenous Australians is brutish: they’re rarely given access to rehabilitative or educative programs, are regularly imprisoned for non-serious offences and young offenders are far less likely to be given cautions or diversionary options. In Western Australia and the Northern Territory, both home to high Indigenous populations, offenders are also subject to the three-strike law: if you commit an act of home burglary, and it’s your third time, there’s a mandatory sentence of 12 months imprisonment. Sentences are rarely proportionate and it is no coincidence that 80 percent of juveniles incarcerated under this law are Aboriginal. The law breaches the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

Justice in Australia, it would seem, is delivered through white-tinted glasses.

This racism pervading the institutions of Australia is structural; ‘the discriminatory impact of laws, policies and practices’ over many years – more than two centuries worth. In light of that, racist deeds performed while in the duty of these institutions cannot be blamed solely on the individual. As Chloe Hooper concludes in The Tall Man, it wasn’t that Chris Hurley was a racist per se. But the paternalistic policies that criminalise drinking and poverty and lock-up individuals for petty offences – then fail to distinguish between appropriate responses and violent transgressions – are all traits of a structurally racist institution.

Sadly, the kind of governance that sees the failure to hold any individual or institution responsible for the death of a man in custody, a system that in fact rewards such behaviour, is simply a recent chapter in Australia’s appalling Aboriginal narrative.

Although no longer enshrined in law, it wasn’t so very long ago that Indigenous Australians had no right to a trial or appeal, and could be dragged before the courts because, basically, indigeneity was a crime. For decades, they could not enter or leave towns without permits. There was the removal of children alongside the compulsory sterilisation of Aboriginal women. There was the sexual slavery, which overlapped with other forms of slavery (from the 1800s right up until the 1980s). And there was the stripping Indigenous people of their lands and freedom, herding them onto government-created missions that aimed to ‘civilise’ and control Australia’s Indigenous population.

All of these policies were related, at heart, to a White Australia, an ideal that still lies beneath the treatment of non-white Australians today. Now in 2011, we have the Northern Territory Emergency Response, introduced under the guise of child abuse being rampant in Indigenous communities:

the statistics paint a frightening picture of what could only be termed an ‘epidemic’ of family violence and child abuse in Aboriginal communities

Facets of the Intervention, such as the fixation on alcohol consumption, echo policies from 1918, wherein Aboriginal people could not drink, possess or supply alcohol. Yet again, we face a situation where ‘notions of “acceptable behaviour” are “defined exclusively for the non Indigenous community”, while the values, beliefs and practices of Indigenous people are marginalised or treated as forms of anti-social behaviour’.

That Indigenous people are first blamed for what ails society and then stripped of their agency, which goes unnoticed by the majority of the population, is because structurally racist policies like the NT Intervention are not merely the legacies of colonisation, but continuations of it. If we define colonisation most simply as robbing First Peoples of land, resources, culture and dignity, how can Australian colonisation have ended when these tactics continue?

It was twenty years ago, too, that Yothu Yindi recorded ‘Treaty’, a demand that has all but disappeared from the public debate about Indigenous Australia. Australia is one of the few countries without a treaty with its First People and the myth of terra nullius has been intricately weaved into Australia’s identity; the erasure of previous inhabitants – who did not exist or were subhuman – means there is no need for compensation or acknowledgement.

It’s not simply a matter of paying reparations for what we did, because how could we make up for the countless massacres and injustices that were once law? But we need a place to start, and apologies and Sorry Days are not enough.

Indigenous Australians need to be recognised as equal to all other Australians under the law and under successive governments. A crucial first step would be ending the NT Intervention. Perhaps after that we can start to look at the racism within our justice systems – and the weight of 200 years of dispossession.