Truganini and others in Tasmania

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.

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

If you like this piece, or support Overland’s work in general, please subscribe or donate.

Jacinda Woodhead is a former editor of Overland and current law student.

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  1. But are you prepared to look at gender as well as race within justice systems, and how that impacts on Aboriginal women as victims of domestic violence (largely at the hands of Aboriginal men, tho occasionally also Aboriginal women in the NT)?

    The current alcohol restrictions enacted in the NT are a mixture of Commonwealth (i.e. NTER), NT and local legislative & other arrangements largely directed at the Indigenous population tho they do impact on the non-Indigenous population, who also have significant alcohol abuse issues (they just drink in different ways and in different spaces). It is common to see cases of serious harms and homicides before the courts in which absolutely everyone–victims, offenders and witnesses–was drunk. I’d say something like 95% of cases. The restrictions being trialled aim to reduce the considerable harms caused by excessive alcohol consumption–stab wounds, deaths, etc. You can’t take a dead person to rehab.

    What policies do you have in mind in place of the(yes, highly flawed)NTER to address homelessness, unemployment, disintegrating community governance, substance misuse and violence in the NT? Perhaps you could go and work there, and offer your skills, rather than sending potshots from afar about what is an extremely complex and challenging situation.

  2. Jacinda, a sharp, incisive post that goes to the heart of the issue.

    Like Jacinda, I care very much about domestic violence and its devastating impacts on women, but that in white communities rarely names its perpetrator as male, and yet in black communities can’t name them enough. This willingness to blame and label Aboriginal men is entirely without context, that context being white settlement and ensuing disempowerment, disenfranchisement, poverty, neglect, racism and imperialism.

    The NT intervention response was not because something had to be done but because Howard was going to an election and had to look as if he was doing something. Unfortunately, the intervention did little more than reinforce the causes of the shameful inequities, that today, should haunt any right thinking Australian.

    So please Eleanor, look beyond Aboriginal men for the cause of domestic violence, unless you wish to revert to eugenics as explanation, to the institutional structures that do not question, and often condone and reinforce the racism that condemns Indigenous Australians to Third World living conditions, that to this day are so comfortably explained away by dependence on alcohol and welfare.

    And if you want policies that address the paternalism that has led to Indigenous suffering, why not consult Indigenous Australians, because one thing’s for sure, a couple of hundred years makes it pretty clear that white Australia doesn’t have the answers.

  3. I don’t deny the broader context of institutional racism and systemic disadvantage (in fact, I’ve written several policy papers on these issues in my time along with chapters of the Social Justice Report.) However, I think that the level of crisis in Indigenous communities and families and lack of resourcing is not understood by those living in urban areas and that big picture solutions such as ‘stop the NTER’ or ‘end institutional racism’ are simply that: big picture and don’t provide adequate responses to dealing with immediate issues such as homelessness, breaking the cycle of violence, etc. East coast lefties often seem quick to critique and analyze, but have little to offer in terms of practical solutions.

    I have also conducted many consultation processes with Indigenous people, including on issues such as customary law and violence, and governance…frequently vexed and far from perfect processes. Some would also mention the fact that Aboriginal people have been over consulted.

  4. great article Jacinda. The alcohol restrictions in the NT, may claim to be aimed at all, but really they’re aimed at indigenous people. The amount of times i’ve seen the cops pour out alcohol beloging to indigenous people, lock them up and drive them away, then do nothing as pissed white men drop burn outs in the bottleshop and speed past my place, or the alcohol fueled violence fest, that is Mitchell St on a Thurs-sunday night, and yet the cops do very little. The law may exist for all, but it’s applied to indig people, far more than non-indig people, and that’s because the NT News, and various radio stations are full of people complaing about the ‘long grassers.’ Alcohol abuse is a problem across all sectors of NT society, only no one wants to admit it, coz alcohol abuse is the NT way of life. I do agree, indigenous people have been over consulted, the problem is they are only ever consulted, but rarely given agency to do anything about issues that concern them. Even then the consultation is with a few hand picked people, problem is white borocrats and pollies expect representational politics to be the way things are done, which is why many people thing Noel Pearson, to name but one person represents all, or at least a large slice of the aust indig population-such a belief if doomed to create nothing worthwhile.

    There’s no quick fix, that i can see, it will all take a long time and serious financial, educational, social and political input and empworment is needed but there’s no votes in anything long term-it’s all election cycle to election cycle, meanwhile the shit gets deeper and deeper for indigenous people.

  5. Perhaps a less misanthropic view would be to recognise that David Gulpilil is much admired and much loved, and many of us wish to know of his trials and travails.

    Perhaps Jacinda Woodhead you may like to consider the feelings of the aboriginal girl gang-raped to death; and whose death triggered this intervention.

    Ah, but that’s against your philosophy. Maybe that’s not a philosophy the abused can afford, and, you know, maybe your beliefs don’t interest them.

    You and Trish Bolton might ‘care’ about domestic violence. It’s readily fucking apparent that neither of you have been subjected to it. “Why not consult indigenous Australians” How many Aborginal people do you or Jacinda Woodhead know? How do they feel about you preaching on their behalf?

    It’s such a relief not to have to read Overland anymore.

    • Susan, please avoid making personal judgements (that you are in no position to make) because we do not share the same opinion.

      That aside, I thought you might be interested in an excerpt from the Australian Domestic & Family Violence Clearinghouse response to the NT intervention

      Indigenous people need to be reassured that interventions that will be considered are sustainable; that interventions will stop the violence while supporting them to heal their families and communities … Interventions need to address the underlying contributors to violence and abuse. Problems of family violence and child sexual abuse have their foundation in chronic Indigenous disadvantage, past and present removal of children from families, racism and a lack of basic infrastructure and services.

  6. Interesting take on the Gulpilil case. I think the case got national media attention because he is a celebrity more so than because of his Aboriginality. There was a womens body found in the Todd River last week who died as a result of what police are calling suspicious circumstances. Tonight the life support is being turned off on a women from Tennant Creek who was assaulted last weekend. Neither of these stories will get picked up by the media outside of the NT. and yet that is the situation that many police and ambulance officers are confronted with on a monthly basis. and that many judges see before them.

    I agree that our colonisation has brought with it a lot of institutionalised racism and systematic disadvantage.

    I agree that there are problems in the number of indigenous in prison (the fact that a sizable proportion here in the NT are in for Drink Driving, Driving without a license or Driving an unregistered car is an example of how this happens).

    The fact that same people in Alice Springs wait until winter, get picked up for an outstanding warrant and spend a few months in jail over the cold months is terribly sad and an example of the housing issue that exists here.

    There are plenty of problems around the legal system towards indigenous Australia.
    I’m not sure though that the Gulpilil case highlights these the best. (taser deaths, deaths and custody, TJ Hickey all show these more clearly than the Gulpilil case – although an indepth and analysis and comparision between that of Matt Newton and David Gulpilil would be an interesting article in and of itself)

    Rohan, its the same here in Alice. Alcohol taken off you if you’re aboriginal as you walk through the carpark not if you are non-aboriginal. I’m not sure what the solution to the drinking problem in the territory is. as you point out the short sightedness of the politic cycle is one of the major hurdles.

    I agree too that there is no quick fix

  7. Thanks for all the comments. I have several thoughts, but I’m in Newcastle and my internet here is quite flaky. Will return soon.

  8. Overconsulted, meaning that they are tired of being approached for their opinion on every issue under the sun by whitefellas, and not seeing any results. It’s a reason why they often refuse to speak to more government, etc, people.

    Sure, Gulpilil has probably received more bad publicity than white high profile figures and maybe a harsher sentence, but much family violence is under-reported and many victims, esp homeless Aboriginal ones, receive little coverage:



    • Yes, consultation without action is a farce. The massive effort to get a royal commission into aboriginal deaths in custody all those years ago- the pain and risk by those speaking out. Then fundamentally unacted on. Intervention It stinks. Shame Australia. Do something about it!

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  10. a bit late but, she is correct about the black white thing, cousins the footballer continues to get let off, and mathew newton is in trouble again in the USA, maybe if Australian law was consistent these repeat offenders and others like them might learn something, there has always been double standards in the police force, how many deaths in custody and police have never been convicted for killing a single Aboriginal since invasion, doesnt make sense

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