June 10, 2020

Issues and policies

Do black lives matter to the PM?

By Russell Marks
Image of a Melbourne rally in solidarity with the Black Lives Matter movement on June 6, 2020.

A Melbourne rally in solidarity with the Black Lives Matter movement on June 6, 2020. Image © Darrian Traynor / Stringer / Getty Images

How serious is the Morrison government about stopping Indigenous deaths in custody?

The global wave of fury and support for the American Black Lives Matter movement in the wake of yet another homicide of a black man (46-year-old George Floyd) by a white cop (Derek Chauvin), washed ashore here on Saturday in the form of protests across Australia against black deaths in custody.

It is irrefutable that African Americans are policed in wildly different ways than white Americans are. It is also irrefutable that the ways in which Indigenous people are policed bear few similarities to the way most white Australians are policed. The rate at which the United States imprisons its African-American population has become a global cause célèbre. Yet there remain many white Australians who are surprised to learn that the appalling divergence in the rates at which black and white Americans are imprisoned is dwarfed, spectacularly, by the difference between Indigenous and white imprisonment rates in Australia.

Thirty years ago next year, the pioneering Royal Commission into Aboriginal Deaths in Custody found that the most significant reason Indigenous people were dying in police cells, police vehicles and prisons so much more often than white people was that Indigenous people were in those places much more often. The commissioners made 339 recommendations. Ken Wyatt, Australia’s first Aboriginal minister for Indigenous affairs (the Morrison government calls the portfolio “Indigenous Australians”), says the feds have implemented most of those relevant to them. And yet, since 1991, the rate at which Indigenous people are locked up in Australia has skyrocketed. Either the recommendations were ineffective, or their implementation has been.

When tens of thousands of Australians, inspired by events in the US, marched against police brutality, they still met resistance. The Australian, never afraid to aim for new heights of absurdity in its defence of settler rights, tried to present it as an affront to public health.

It wasn’t out of concern for social-distancing rules that The Australian opposed the protests, of course. It was because the paper disputes that there’s much worth protesting. (After all, the Murdoch press had taken a general stance against society-wide shutdowns until then.) If Indigenous people are being locked up at up to 20 times the rate white people are, says the Murdoch press, that’s because they’re committing crimes that warrant it. A procession of Morrison’s ministers all but said the same thing last week.

But the protests seem to have had some effect. The Morrison government has reportedly scrapped a draft Closing the Gap agreement to reduce by 19 per cent the rate at which Indigenous people are being locked up, because it wants to take a more ambitious target to state and territory leaders in July. The signalling of that intention represents just about the first glimmer of interest any government has shown in decarceration in decades.

Of course, targets are meaningless without substantive action. Why are Indigenous people being locked up so often? How the government answers this question will determine how serious it is about fixing the problem.

The most obvious reason Indigenous people are arrested so often is that they are policed relentlessly. Today’s policing of Indigenous people and communities, from Walgett to Wadeye, bears very few similarities to the methods employed by the first professional police force in London, the six men empowered by Henry Fielding (in his role as Bow Street magistrate) to serve writs and make arrests from 1749. As late as 1911, the Encyclopedia Britannica acknowledged that Britons saw the continental concept of “police” as “a symbol of foreign oppression”. It doesn’t seem to matter how often police officers are caught out in blatant lies. Australian courts overwhelmingly prefer their rehearsed evidence to the often confused accounts given by defendants months after half-recalled events. Today’s police forces, with swarming numbers, paramilitary units, military-grade weapons and ever-expanding powers, are routinely unleashed with full force on Aboriginal communities. The extra police John Howard sent into the NT’s remote communities in 2007 didn’t arrest child-rapists – the Intervention’s raison d’être – but they did arrest a whole lot of unlicensed drivers they caught motoring along dirt tracks. This is the problem with too many police. There’s too much surveillance. It is no exaggeration to describe the conditions of surveillance that exist in many Aboriginal communities – remote and urban – as constituting mini police states.

Another obvious reason Indigenous people are locked up so often is that, as a population, they commit the kinds of crimes that criminologists everywhere expect traumatised populations living in abject poverty to commit. Indigenous poverty is a function and a consequence of the land thefts at the heart of the “settlement” of this continent by Britons. Indigenous trauma is a function and a consequence of what the invaders did, during the frontier wars and for generations thereafter. Massacres, genocidal in scale and intent. Sustained efforts – still ongoing – to stamp out culture. Child removals. Malevolent, bureaucratic control under various banners, including “protection”, “assimilation” and “welfare”. It’s hardly surprising that Indigenous people are over-represented in crimes of poverty and trauma, such as assault and property damage. The other explanation, given similar incarceration rates among Maori and First Nations Americans, is that British colonisers were so incredibly unlucky that they just happened to stumble across indigenous populations that were naturally criminogenic.

A third reason Indigenous people are imprisoned so often is that Australian politicians, magistrates and judges – who are invariably not Indigenous – remain unswervingly committed to two bad ideas. The first is that all crimes are to be funnelled exclusively through the criminal justice system imported by the British invaders. The second is that even where offender and victim both live in a community where Aboriginal law operates, Aboriginal law must be ignored. As a consequence, Australian authorities seem happy to have people arrested, detained, dragged through bewildering court processes (conducted in the language of the colonisers and according to rules they never participated in setting), and then imprisoned, sometimes hundreds of kilometres away from the community that may wish to impose its own (much more meaningful and restorative) sanctions, but can’t. Australian authorities know that their system fails spectacularly to achieve its objectives – “rehabilitation” and “deterrence”. Most people also acknowledge that this system takes existing problems and makes them worse, for instance, by generating a kind of “bullshit culture” where men incarcerated together away from women bring abusive behaviours back to their communities upon their release.

But white authorities aren’t for turning. Howard, when he was prime minister, liked to repeat that there is “one law” in this country. It was always an odd remark, coming from a former lawyer who had spent decades working under a constitutional arrangement that already recognised many different sources of law: federal parliament, six state parliaments, two territory parliaments and the courts, not to mention nine constitutions (10, including the UK’s). What he really meant was that Aboriginal law shouldn’t count.

Is the Morrison government prepared to act in ways that do count? Is it prepared to encourage or force states and territories to de-fund police in favour of alternative, community-led services that can help communities heal? Is it prepared to acknowledge the centuries of trauma that “settler Australia” has inflicted on Indigenous people and communities? To offer reparations? To restore the stolen land? Is it prepared to empower Indigenous communities to administer their own law? Or at least to explore community-led alternatives to the absurdist merry-go-round we call “justice”?

Like prime ministers before him, Morrison would no doubt baulk at any suggestion he doesn’t hold Indigenous lives and liberty in the highest regard. But all of us are judged, ultimately, on what we do, rather than what we say we believe. Let’s see how much black lives really do matter to Scott Morrison and his government.

Russell Marks

Russell Marks is a criminal defence lawyer and an adjunct research fellow at La Trobe University, where he completed a PhD in Australian political history. His most recent book is Black Lives, White Law: Locked Up and Locked Out in Australia. He lives on Kaurna land.

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