The findings of the RCIADIC exposed the link to ‘structural, systemic injustice to a disadvantaged minority rather than a propensity in this group to increased criminality’.
Since the beginning of colonisation, conflict arose between the locals and European newcomers in regards to water and land accessibility. This resulted in sanctions and punishment being imposed on Aboriginal people. By the 1840’s, in the NSW colony, a series of special laws had been proclaimed prohibiting virtually all aspects of existing tribal lifestyle. The laws were targeted to eliminate hunting, customary law, carrying of traditional weapons, conduct of ritual fights, or a gathering of more than six people near a farm. Aboriginal people were precluded as competent witnesses in the increasingly rare instances when there was some effort to resolve clashes with some fairness.
Increasingly harsh provisions were inserted into criminal laws as colonial expansion spread across the continent in the nineteenth century. These included whipping and other corporal punishment exclusively for Aboriginal people, long after they were not used for other offenders. Local law enforcement citizens, ‘Justices of the Peace’, could order whippings for cattle killing and other minor crimes. Public executions were continued for Aboriginal offenders after being discontinued for other citizens. The infamous Native Police was also created. They were government funded paramilitary units that operated in most states from about the 1840’s up to the early twentieth century. These units, led by non-Indigenous senior police, consisted of First Nations men and boys whose task was to ‘protect squatters, miners and settlers on the frontier by whatever means necessary’, which often meant finding and killing Aboriginal people defending their lands.
This nineteenth century period has been described by historians as a time of ‘constructing the Indigenous criminal on the frontier’. By the end of the nineteenth century, First Nations populations across the country were decimated and subjugated, giving rise to each colony’s version of the Protection Acts (1869-1911). First Nations people were forcibly moved into State or Church institutions set up on the edges of settler communities. Initially set up as a means of ‘soothing the pillow’ of a dying race, these segregated institutions became a way of life for most Aboriginal people up to the late 1940’s, when dismantling of the state-based Protection Acts began.
Every aspect of peoples’ lives was controlled by authorities, mainly the police ‘protectors’. This made it impossible for the people to take any part in white society while at the same time punishing them for their independence. Another notable statistic, draws attention to the processes of the criminalisation, segregation and subjugation of First Nations Peoples more or less up to the present day. From 1960 onwards, as Protection Era policies were dismantled, incarceration rates significantly increased amongst First Nations People. Researchers argue that this steady increase did not mark a radical shift but rather a movement from one form of control to another. Some go so far as to say that there has been a continuum of legislated colonial domination since 1788.
It is this history that the Royal Commission into Aboriginal Deaths in Custody attempted to interrogate and compelled Senator Patrick Dodson to describe the legal system ‘as feared and despised’ by his people.
Where to from here?
ANTaR engages in advocacy on multiple fronts in partnership with Aboriginal and Torres Strait Islander-led organisations, peak bodies and campaigns such as Change the Record, Raise the Age, Just Reinvest and Close the Gap. While progress is too slow, milestones like the recent inclusion of a justice target in the 2020 National Agreement on Closing the Gap are welcome. We will continue to work to keep justice issues for First Nations People firmly on the agenda of governments. This requires advocating for fully inclusive processes as First Nations people not only have the right to self determination, but also hold many of the solutions to the challenges faced by their people and communities.