The Houtard Journal Lbl 26 No 4. Nni' 87 I .KV OXL.ii27

Structures of Judicial Racism in Australia

DAVID THORPE Senior Lecturer i n Social CVork, Department o f Social Admin i s t ra t ion ,

Unioersi ty o f Lancaster

Abstract: This paper describes the scale o f Aboriginal ooer-representation in Australian criminaljustice systems. It explains this in terms o f Australian history and contemporary social structures, specijicallv the Eurocentric criminaljustice system. The paper then goes on to describe and discuss recent measures introduced at both Federal and state levels which hnue been designed to counteract some ofthe negatiw effects of the {ystem on Aboriginals. The paper concludfs with an analysis o f the issues which are raised by the plight o f Aboriginals andparallel situations in other countries which have ethnic minority populations who are unduly affected bv rapid social and economic change.

The report of a seminar entitled Aborigines a n d C r i m i n a l Justice held at the Australian Institute of Criminology in 1984, referred to Australian Aboriginals as being '. . . among the most imprisoned people in the world . . .'. Even a cursory glance at the papers given at that conference suggests that Australian criminologists and criminal justice adminis- trators are faced with formidable problems in respect of the effects of their criminal justice systems on Aboriginals. While it is possible to discern many parallels between the over-representation of ethnic minorities in criminal justice systems outside Australia and the case of the Australian Aboriginals, there are some important historical and contemporary differences.

Historically, Aboriginals may not have been treated in quite the same way as European settlers treated North American Indians and Eskimos and at the present time one cannot help but be impressed by the efforts being made by some Australian criminal justice agencies to mitigate the effects of the system. Indeed, the concern shown for Aboriginals and criminal justice has led to a number of Federal and state schemes over the past few years which take account of the effects of the system on Aboriginal offenders in a manner which would be unthinkable in Western Europe or North America.

This paper will begin with descriptions of the scale of Aboriginal over- rrpresentation in Australian criminal justice systems. It will then offer some explanations for this in terms of Australian history and contemporary society, and it will describe some of the measures introduced in recent years which have been designed to counteract some of the negative effects of Eurocentric criminal justice systems on Aboriginals. The paper will

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then conclude with a discussion on some of the issues raised by the plight of the Aboriginals and thc areas which parallel the problems which criminal justicr systrms pose for ethnic minorities in other countries, and working class people in communities which rxperience rapid social chanqe. There are elements of the Australian Aboriginal situation which may have important lessons for other countries.

Aboriginals and Criminal Justice: The Problem

In 1984, the author was invited to visit Western Australia by the Dep;irtmtLnt o f <:ommunit); Welfare which had recently begun a series of reforms i n its work with juvcnilc offenders. Within a very few days of his arrival, i t became clear that the question of Aboriginal youth and crime was very much in the forefront of the minds of departmental officers who wcrc actively engagcd in thc rcforms, and some of the measures already introduced in that agency will be described later in the paper. l ' he author was given the impression, while visiting the two high-security youth institutions in Perth, that the majority of youngsters in those facilities were black' and the departmental officer who had organised the visit cstiniatcd that 'ovrr 60%' of the inmates were Aboriginal. She added that Aboriginals formed 'less than three per cent of the State's population'. 'l'hc visual disparity is so striking that i t is easy to leap to the wrong conclusioiis - namely that Aboriginals art: either deeply committed to crimc as a race or that Australian criminal justice system officials deal \ i . i t l i :\l)originals in a truly exceptionally harsh fashion. Neither position, 21s tvc shall see, is true.

.\s part of a major review of Western Australia's Child M'e1Fw-e Act, Professor Eric Edwards (1982) of the University of Western Australia statcd i n his rcport that:

Chlculatcd from thr 1976 Ch-~sus statistics the total of all children in the 10-13 year old ;igc groups i n \Vestern Australia is 210,584. The total of the A1)originals i n thc siitnr group is 6,701 (3.18%,). T h e total number ofoflences shown in the <:hildrrn's Court statistics f'or IW-8I is 14,532, of'thesc 4,721 (32.49%) are listcd against Alioriginals. (Part 3, p. 37)

'I'his simplr calculation demonstrates that Aboriginal youths were over- represented in \.Vestern Australia's ,juvenile criminal statistics by ;I factor of' tcii. I n thc adult system, ii similar situation obtains. A study undertaken hy hlartin and Newhy (1984) at the University of Westrrn ilustralia states holdly that:

'l'lic liict of' cscessi\~c : \hriginaI involvcmcnt in crirninal law in Australia is well known; i n \V.;l. the issue is particularly acute, with approximately a third of prison inmates and a fifth of court chargc's in any one year being drawn from an .\l)original minority of 'L.S%, ol' th r statc' populat ion. (p . 295)

Somc: cluc as t o the rcasons fix this ovrr-representation is offered by hfartin and Newby's cross-tabulation of ofience type and race on da ta

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taken from adult courts in seven towns in Western Australia. Table 1 is extracted from Martin and Newby’s 1984 research.

‘TABLE 1 Offence Q p e by Race

OFFENCE: TYPE RACE (by charge) Aborigines Non-Aborigines

~~~

Offences against the person (189) 4.1% (65) 2.4% Offences against property (329) 7.1% (328) 12.2% Offences against good order (3106) 67.1% (412) 15.3%

Other (484) 10.5% (238) 8.9%

Total (4626) 100.0% (2686) 100.0%

Traffic (518) 11.2% (1643) 61.2%

(Source: Martin and Newhy 1984, p. 298)

‘This table clearly demonstrates that Aboriginal crime is qualita- tively quite different from non-Aboriginal crime, more than two- thirds of Aborigines were convicted of offences against ‘good order’, which, essentially of course is an offence usually arising frpm and defined by police presence and action. This issue is crucial and will be taken up later in the paper.

The ethnic bias of Western Australia’s criminal statistics is reflected in every other Australian state. Writing of one remote Aboriginal com- munity in South Australia, Brady (1985) begins by saying that: ‘In the year preceding this study, 77% of Tallowan community’s 14-18-year olds had appeared in court on a variety of charges’ (p. 112). South Australia rcputedly has the most progressive juvenile justice legislation of any Australian state, achieving very high levels of diversion from prosecution and having the lowest rate of youth imprisonment. Yet even there, it is clear from Brady’s research that the Aboriginal anomoly is as consipic- uous as i t is anywhere else. In the ’welfare’ sector, Aboriginal children are grossly over-represented in the care statistics. Stewart Murray (1984) of the Aboriginal Advancement League in Melbourne, Victoria, shows that in 1974, 323 of Victoria’s 3,107 Aboriginal children (the total population in the state under the age of 18 years) were state wards (the equivalent of being subject to a care order under the 1969 C.Y.P.A.). Murray calculates from this that effectively 9.6% of Aboriginal children in the state were in care, a rate which he claims was ‘. . . 16-20 times higher than that of non- Aboriginal children’ (p. 8 1 ).

The peculiar and unique relationship of Aboriginal Australians and the Australian State offers a partial explanation of the issues raised by these statistics. In 1978, the Aboriginal population of Australia was estimated at 240,000 of which 7.4% lived in urban settings, 16% were settled on

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farms, 13.5%, lived in ’outstations’ (agricultural settlements) and the nwjority, 63. I % , lived in Ahoriginal communities in remote parts of‘ the state. These tigurcs produced by the House of Representatives Standing Committee on Aboriginal Affairs are of course only estimates since many Aboriginals have very infrequent contact with government agents, especially those described as living in Aboriginal communities. ‘I’hey also show that the phenomenon of Aboriginal ‘crime’ is predominantly rural. While some conspicuous urban Aboriginal communities do exist and social disorder is perceived iis an important feature of such communities, there arc clrar diB‘ercnccs from constructions of black criminality in Britain which concentrate on the so-called inner city ‘ghetto’ or colony arcas (cf’. *Jotin 1978; C.C.C.S. 1982). Aboriginals come into conflict with Australian police i n all these settings although it is likely that those very remote communities which very rarely see white people or police officers will produce less ‘crime’. Individual and evrn groups of Aboriginals do however move from setting to setting, travelling from the deserts and forests t o the fringes o f urban communities, to other types of community. ’I’here is a vast range of different types of movement, just as there is a range of types of community - some with their own distinct language and kinship structures. It is difficult t o gcncralise about Aboriginal life and culturc

Just as the geographical, and to a large extent, the cultural relationship of Aboriginals to the Australian State is different from that of British ct tinic minorities, so too is the historical relationship. Australian Aboriginals are in Fact the original Australians and the development of the Australian State took quite a different form from the European settlement of other countries with indigcnous populations. North America for example was initially settled by refugees from Europe. T h e Founding Fathers and their followcm over the centuries wcrc frequently refugees from political and religious persecution and American social and political structurcs drvelopr:d around the ideology of individual effort, individual fi-ecdom, individual recourse t o law arid an understandable antipathy to government. In contrast, Australia was actually founded by the govern- ment, ironically initially as a penal colony in New South Wales. Indeed, when the colony was founded in 1788, ull land was declared British territory, the property of the Crown. In contrast, European settlers in North America and New Zealand frequently dealt with the indigenous population on the basis of treaty and even though the bargaining over land with Indians ( i n North America) and Polynesians (in New Zealand) was more ottcn than not fraudulent, land ownership WBS ‘legally’ passed from one group to another. Australian Aborigines were however treated in a completely different way, since the British deployed the legal doctrine of lerra nullis (cmpty earth) with regard to Australia and the natives were seen as savages to be exterminated. Macllvanie (1984) points out that:

The re was n o treaty or agrccment between invaders and invaded. The Aborigines wcrc simply relegated t o the status of ‘non-reside~its’. With their right to land ignored, and all land deemed to be vested in the Crown, a well concentrated - and

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British orchestrated - process of dispossession continued as ‘settlement’ extended. Massacres by soldiers, settlers and police are well recorded and while Aborigines fought a strong war of resistance, by 1860 the ongoing process and pattern of dispossession had been virtually completed. The establishment of the mounted police in 1825 marked a new era in AboriginaVpolice relations. Assembled as a protecting force against escaped convicts, they were soon to become involved in violent confrontation with the Aboriginal population while performing tasks undertaken by the army in other frontier situations. The dual - yet entirely contradictory - roles of the police became those of ‘protection’ and ‘prosecution’. Under the rule of law and in the guise of authority they became the force of dispossession, the dispensers of summary justice and, on many occasions, the instigators of massacre. (p. 118)

This ‘dual role’ has characterised police interactions with Aboriginals since that time. From the 1870s onwards, legislation was passed at state and Federal levels protecting Aboriginals from European predation and exploitation. Ironically, protective legislation also had the effect of increasing police powers over Aboriginals. T h e 1909 Aborigines Protec- tion act effectively empowered the police to decide where Aboriginals should live. As McIlvanie (1984) points out:

Now, fully within the confines of an Act enshrined in law, the police could move Aborigines on and off reserves at will. They - and not the individual Aborigine - became the judge as to whether that person was, in fact, a n Aboriginal person. According to the quantum of ‘black’ blood coursing through the veins of an Aborigine, he/she would be moved out of town and indeed out of the district. In addition, the police had the power to remove Aboriginal children from their parents if, in their opinion such children were seen to be in need of ‘white’ care and protection. (p. 119)

It would appear that the history of police-Aboriginal relations has an institutionally racist dimension which goes far beyond that offered by a simplistic explanation based on the racism of individual police officers. Historically, the Australian police have been used as the White State’s instrument of oppression, coercion and control, since the Police were specifically given powers over Aboriginals which were much greater in their scope than those of the criminal law - which theoretically at least applied to both white and black Australians. This included the power to decide where someone should and should not live as well as the power to remove children from their parents. Many of these powers were only removed as recently as 20 years ago, well within the living memories of many adult Aboriginals. Ironically, the power to remove children in need of care and protection passed from the police to newly established social welfare agencies during the 1960s. These agencies also assumed many of the ‘protection’ functions of the old Aborginal Protection Board of the 1920s and the Aboriginal Welfare Board in the post World War I1 period (the administration of reserves, the provision of educational, medical, housing and income maintenance services, etc.) .

While visiting a town in the northern region of Western Australia in which an Aboriginal youth had recently died in police custody, the author was informed that the youth was a state ward - as were most of the

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Alwriginal childrrn in the town. As will be shown later however, these state welfare agencies are only too conscious of history and the pro1)lcms of the prrsent, so there is plenty of rvidence to suggest that constructive and creative rfhrts arc t r i ng made within the welfare sector which arc intended, at the very least, t o prevent a repetition of the past.

History and thc role of the police is nevertheless only onc dimension of explanation. Another lies in thr naturc oftraditional Aboriginal modalities of social control which comc into direct conflict with European-style criminal law and its administration. ‘I’hrrc are two aspects to this. ’I’he first is the way in which Europcan lift: actually directly undermines traditional A h i g i n a l mcchanisnis of socialisation and the second is the lack of ‘fit’ between traditional Aboriginal laws and the punishment of law-breakers, and luropcan Criminal laws and penal sanctions.

Traditional Self-Regulation within Aboriginal Communities

Until the Hritish invasion of Australia a t the cnd of thc eighteenth century, a number of mt‘chanisms operated within Aboriginal communi- tics which permitted the type of self-regulation which is present in some European rural communities. ‘I‘hese mechanisms were the product of thousands of years of r \ du t ion , which produced regulations and regulatory mcchanisnis which ensured tribal survival under what, to Kuropcan eyes, wt‘re vcry harsh physical circumstances. Amongst more traditional tribal Aboriginals many of thesc regulations still exist although they have comr under incrcasing strain since the 1960s. Self-regulation (as oppost‘d t o state-regulation) takes a numhcr of distinct forms. First, it operates as a rcsult of the recognition of a common interest. Second, the regulations are transmitted by culture i n terms of the socialisation of childrcw, thr use of myth, religious belief and tribal ritual. ’ lhird, the distribution of p w c r and control within the tribe is such as to locate a u t hori t y w i thin pa rt icula r k i ns h i p s t ru c t u rm.

Amongst Australian Aboriginals all thesr prcrcquisites for self- &gulation have been undermined if not destroyed by the impact of a European society and culture. In traditional Aboriginal socictics, children were socialised by the women on food-gathering expeditions. ’I‘hese fiJraging trips often took very lengthy periods and the children were taught the rules through the medium of myth, magic and tribal lore. Under these circumstances, the imposition of a European typc shop, or village or community stort: has thc cffect of eradicating thc traditional and accepted system of socialisation. The imposition of European-model schools - whether by missionary societies or state education services, completes t h e destruction. Adults are left without a mechanism for socialisation. Children do not learn tribal lore. Adults then interpret delinquency not as a ju i lure of socialisation and something for which they are responsible in the way in which European parents do, but a result of children having ‘no ears’ (ears being at thc centre of understanding), or ‘no shame’. Both thesc expressions denote specific cultural forms to which no European equivalent exists. As Brady (1985) points out:

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In this way, the Ahoriginal conceptualisation of the degree of responsibility possessed hy children for their actions precludes the possibility of influencing or diverting their actions. A child cannot be responsible if he or she has no understanding. Parents would shrug and say ‘he can’t listen’.

One .4horiginal man we spoke with explained his unwillingness to actively modify the hehaviour of young people. He likened the problem to that of straightening a spear. If you tried to makr the spear too straight, you might break it. The socialisation o f children (or ‘growing up kids’ as i t is described by the Pit.jant.jatjara) is accomplished in a non-authoritarian way. (p. 118)

Europeans of course do exactly the opposite, the state supplements hierarchical family socialisation by hierarchical institutional socialisation (in schools) and transmits the virtues of discipline, obedience to authority and habit through the medium of education. The development of this mode of socialisation has been extensively explored by Foucault ( 1978) amongst others. ‘There is of course no Aboriginal equivalent - not the least reason being that Aboriginal children did not need to be prepared for survival in a mass, hierarchical socialist or capitalist industrial society. Unsurprisingly, in the eyes of European police officers and welfare officials, Aboriginal parents appear inadequate and their children out of control.

Law enforcement (including complaint, judgment and punishment) in traditional Aboriginal societies occurred through kinship and tribal structures - there being no equivalent of the state or indeed even ‘community representative’. People’s relationships and interactions with each other were determined by the status attendant on membership and the membership structures possess no European equivalent since they cut across European notions of ‘family’ as well as ‘community’. T h e idea of judgment o r punishment emanating beyond these boundaries was simply not only unthinkable, but not possible. Moreover, disputes between Aboriginal people had to be resolved in very practical and immediate ways.

Since traditional Aboriginal communities did not use money, live in houses or even stay in the same place, the modern European penal dispositions of bail, fines, incarceration and probation have absolutely no Aboriginal equivalent. Whatever sanctions were imposed within the kinship system, they were swift and immediate. In their most extreme forms, these might include physical punishment ranging from a single blow, through spearing to execution. But these were extremes, more usually some form of public denunciation was used.

Ironically, this very mode of regulation (the use of public denunciation as a sanction) represents a very obvious way in which Australian criminal laws cut across traditional Aboriginal custom and actually create criminalisation. Writing of Aboriginals in the Kimberley Region of Western Australia, Syddall (1984) says that Aboriginals still use the ‘public harangue’ frequently:

If a person feels aggrieved he will ‘growl’ his victim in the presence of other members of the community and cut him down to size. The pub, is the obvious place to do this especially when alcohol has raised memories of hurts - real or

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imaginary. Quarrelsome behaviour is, of course, in European terms disorderly conduct and arrest and imprisonment often follow fin doing what, in his eyes, i s his right. (p. 135)

Syddall also gives another example of how traditional Aboriginal behaviour aimed a t regulating social conduct is actually criminalisen by European law. One example of this process of criminalisation is his reference to women undressing and standing naked between two men engaged in conflict. Sincr Aboriginal law requires males to avoid naked femalcs, the fight inevitably cnds. Such public nakedness is however an offence against ‘good order’. ‘Traditional A1)original pcnaltics which involve striking one blow are also offrnces against criminal laws. It would appear that the very behaviours which have heen used traditionally to contain and resolve conflicts, are punishable offences in white Australian society. Even the procedures of European law courts violate Aboriginal tradition. Syddall comments that:

Avoidance rules inakc courts difticult to run when a witness is not permitted to look at a defindant and, unless one is aware of this, x man’s credit may be doubtcd. :\gain, the name of a deceased person can not be mentioned and a witness may refusr t o look a t a photograph of a deceased. Sometimes people will plead guilty rather than have a matter go to trial and run the risk of revealing tribal secrets o r of repearing words which provoked an assault. For example, the namcs of male and female sex organs, the names of dead persons, arid sacred objects. (p. 137)

‘I’hc impact of imprisonmcnt on Aboriginals is an issue which has implications far more serious than is the case for whites. Australian Aboriginal life is tied up with tribe, with the land and with custom. At a strokc, prison deprives black Australians of virtually every single experience which serves to maintain and reinfirce their sense of self. Mention has already heen made of the fundamental nature of kinship in traditional Aboriginal society a s a complex, coherent structuring mechan- ism. Similarly, avoidance (not looking a t someone, not speaking to somcone) is an important part of social interactions, which in part is defined by kinship. Unfortunately Aboriginals can be placed together in policc or prison cells, or made to undertake certain tasks together when kinship rules would dictate that such proximity is not possible. Conse- quently they may fail to work or even disobey orders.

’Thc usc of non-custodial seritences which involve elements of supcr- vision are also problcmatic. Probation, parole and bail procedures usually involve conditions with regard to accommodation (living in a certain place with a specific address), employment and associations. In more rcmotc Aboriginal communities these matters are quite impossible to supervisr since Aboriginals are not likely to have an address in the conventional sense and tend to move around a good deal. Employment more often than not is out of the question and it is difficult to have any control or even supervision over someone’s associates. ’ l h e Correctional Service Division of the Northern Territory cite a case where an Aboriginal

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woman was forbidden, as a condition of recognisance to return to a certain district.

However, a memher of her kinship group had placed a curse upon her, and in order to lift the curse the woman had to return to that district first. In so doing, she violated one of the conditions of recognisance and was arrested (Swanton 1984). This case provides an excellent illustration of the way in which the very rules attached to non-custodial sentences efkctively exclude Aboriginals - i t offers one explanation, in one facet of criminal justice, as to why Aboriginals are more likely to be imprisoned than whites.

The Response of Australian Criminal Justice

‘I’he empirical fact of Aboriginal over-involvement in the criminal justice system is not in dispute, indeed Australian criminologists and criminal justice administrators have been aware of it for a very long time. A number of measures have been introduced into Australian criminal justice systems in an attempt to contain some of the effects of Eurocentric criminal justice legislation and practices. These measures include initiatives at both state and Federal levels.

The most prominent rccent Federal initiative was the establishment of the Aboriginal Legal Service, which has had a marked impact on levels of legal representation. Eggleston (1976) claimed that in 1975, in South Australia, Aboriginals were two and a half times less likely to be legally represented than were whites. However, Sutton (1984) shows that by 1982, ‘. . . more than 80 per cent of Aboriginal defendants facing charges requiring more than one hearing, and 34 per cent of those with a singlc appearance, had a lawyer. This compared quite favourably with 77.5% and 26.3% for all others (p. 365). The effect of the Aboriginal Legal Service in South Australia at least, appears to produce positive actions into the system in favour of Aboriginals.

Another, and perhaps even more important Federal development in recent years has been the enquiry into the recognition of Aboriginal customary law, by the Australian Law Reform Commission. This enquiry includes both civil and criminal matters and to date it has produced a number of research and discussion papers. These papers are extra- ordinarily radical in their approach when compared with equivalent European initiatives on the question of minority rights and criminal justice. To begin with, there is a recognition that the problem is not so much one of Aboriginals themselves (socizl pathology), but more a matter of a justice system which might be described as Eurocentric. In Europe and North America, reforms tend to attempt to link dominant and minority justice issues by means of ‘community policing’ or whatever. In other words the rhetoric (although not necessarily the practice) of justice is modified in order to ‘accommodate’ the interests of some ethnic minorities (see for example Benyon 1986). The Australian Law Reform Commission papers suggest a more radical approach, which actually involves the recognitzon that the legal and administrative provisions and

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practices of the dominant, white culture are the problem, as opposed to the failure of a minority group to adjust to the issues. As Rrady arid Morice (1982) say:

. . . the true dilemma of Aboriginal versus Australian law lies in the situation whereby an action which may confbrm to Aboriginal law comes to be adjudicated upon by Australian law ;IS an illegitimate act. (p . 180)/

The Commission is actively looking at legal mechanisms whereby ‘customary law defence’ can be incorporated into the relevant criminal statutes. There would appear t o t)e ahsolutely no European equivalent of this particular measure, which goes murh furthcr than mere ‘community policing’ or ‘ethnic sensitivity’ since it seeks to preserve existing, informal mechanisms of social control. I t may 1)c that the introduction of such a measure into Australian criminal laws will have potentially very important implications for the piecemeal and generally ineffective adrniriistrative and practical steps taken tiy European states in respcct of ethnic minoritics and criminal justice.

However, it is clear from the nature of‘ the conflicts between criminal justice agents and Aboriginals i n Australia that many of the difficulties lie outside the realm of the ‘fit’ between the criminal law and tribal custom. X l i i i i y of the conflicts centre on questions of’ ‘good order’ (the U.K. equivalent exprcwion would be ‘breach of the pcace’). ’I’hese offenccs involve a wide range of bchaviours including drunkenness, brawling, using insulting words, vagrancy and general ‘misconduct’. What is unique aliout them is that they are definvd by police officers, and they can frequrritly he situations in which there may bc no complaint from a member of the public or even a victim in the conventional sense. They are very much ‘police defined’. ‘I’his suggests that the problem is more one of criminxl justice practice than one of law, and it is here where the parallels with the policing of ethnic minorities and certain working class communi- ties in thc U.K. begin to rescmblc those of the policing of’ Aboriginals. Whcn a Departmcnt fix Community Welfare official asked about police/ Ahoriginal relationships, the senior police officer in a Western Australian country town rcplicd vcry starkly that ‘they are thc enemy’. When the author heard first hand of this conversation, he was bound to reflect that at least Australian police officers d o not say one thing to welfare officials arid thcn d o another. I t clearly demonstrates that endemic police racism is a factor which must he taken seriously. In conversation with Aboriginal youths in that town, the author was very vividly rrniirided of similar conversations with Black and working class youths in British cities who fclt themselves constantly harassed and beseiged by the police. Twelve months later similar conversations were held with striking,young miners in South Yorkshirc who previously had had no contact with the police, but who were by that time in daily conflict both on and off the picket lines.

I n Western Australia, ‘Aboriginal Aids’ have been appointed as assistants to the police - but s o far with only limitrd results. While the aids do not have the full status of policc offcers, police/Aboriginal relationships arc such that the status cn.joyed by aids within their own

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communities is not always high. I t does however represent a considerable step forward, especially since the police have been prepared to employ members of the minority group, albeit in a limited capacity, in recognition of the conflicts. T h e Department for Community Welfare in that state has taken a range of positive steps, specifically in the areas of de- institutionalisation ofjuvenile offenders and community work. Since 1978, many Aboriginal youths committed to the care of the Department for offending, have been kept out of institutional care and have been sent to live with Aboriginal communities in remote country areas such as Nookenbah and Millijidee. In addition, many of the Department’s officials who have direct responsibility for the welfare of Aboriginal children have begun increasingly to employ a n approach to their work which seeks to minimise state control of Aboriginals. There is also a policy of employing Aboriginals as field and residential workers. I t is clear that the agency recognises that much of the child welfare legislation and child care practices of the past have created wholesale institutionalisation and between 1983 and 1985 a significant number of youth correctional institutions were closed. While this paper is unable to do full justice to the range of policy and practice changes in Western Australia and other states, it has to be recognised that progressive social work practices not only exist, but have already become incorporated into agency policies.

Despite these practices however, Aboriginals remain at the present time, grossly over-represented in police arrest figures. A recent study by Gale (1985) in South Australia identifies race as a factor in determining police decisions in respect of arresting juvenile offenders, but much more importantly, she discovered that the single most important factor was that of unemployment :

No matter what kind of test was used or what kind of grouping applied, unemployment came out well at the head of the list of predictions of police arrest decisions. In fact unemployment was found to have a predictive value ten times that of Aboriginality alone. Thus we concluded that a higher proportion of Aboriginal youth were being arrested, not just because they were Aboriginal but hecause a greater percentage of Aborigines were unemployed. In reaching that conclusion, we are moving out of the arena of individual racism to a n analysis of the societal structure or, as it is often expressed, a process of structural racism. (P. 8)

It is not of course only Aboriginal unemployed youths who are at a disadvantage in criminal justice systems because of unemployment. In its December I986 report, the Reporters Department of Fife Regional Council shows that of the 1,187 children referred by the police for offending in 1985, 363 (30.6%) were from families where the parents were unemployed. Of the 1,187 children referred, 252 were then brought before Children’s Hearings and 166 came from households with unemployed parents (65.9% of those brought before Hearings for offending) (Reporters’ Department, Fife Regional Council 1986). Gale suggests that it is the welfare orientation of South Australian juvenile justice which actively discriminates against unemployed youth. There is evidence to suggest

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that the Scottish Childrcn’s Hearing system (which is a pure welfare system) works in a similar fashion. Even welfare measures discriminate against Aboriginals since few Aboriginals are in employment.

While the problems Australian Aborigines encounter with criminal justice systems may constitute one extreme example of the over- representation of ethnic minorities in prisons and institutions, Australian legal reformcrs, wclfare workers and researchers are currently going to considerable lengths to come to grips with the issues. Understandly, their cf‘orts arc and perhaps need to be rather more radical than their European or North American counterparts. In this, there may be important lessons for those concerned with the way in which all criminal justice systems discriminatc against such minorities, whether or not they have a ‘justice’ or ‘welfare’ orientation.

Ultimately, the status of Aboriginals in Australian society is a political issue rather than a simple matter of criminal justice legislation and practice. At the prescnt time the major thrust of political change is occurring under the ‘Land Rights Movement’ heading. ‘Land Rights’ does not simply mean donating unused or unallocated Crown Property (state property) to Aboriginals, i t carries with it a whole range of recognitions and understandings about the colonial past as well as an acceptance of the key role which “l’he Land’ plays in Aboriginal life and culture. In the recent past, the Movement has achieved some spectacular succcsscs as well as setbacks, but it continues to makr progress. I t forms the single most identifiable issue around which disparate Aboriginal groupings can unite politically and will continue to act as the focus for structural changc uis n uis the status of Aboriginals in the Australian State in the immediate future.’

Notes ’ ’ 111 kiiozededgernenls:

Australians do not necessarily use the word ‘black’ as opposed to ‘Aboriginal’.

% I s Marion Binnie and M r Des Semple, Department of Community Welfare, Perth, Western Australia. h4r Kobert hlackie, Australian Studirs Centre, Institute of Commonwealth Studics, University of 1,ondon. M r Bruce Swanton, Australian Institute of Criminology, Canberra. Mr Paul Stubhs, Ikpartment of Social Administration, University of 1,ancaster.

References

Henyon, J . (1986) A Tal~ of’ Failuie: Race and Policing (Warwick C.R.E.R. Occasional Papers), Warwick: University of Warwick.

Brady, M. (1985) ‘Aboriginal youth and the juvenile justice system’, in: A. Rorowski and J . Murray (Eds.), Juuenile Delinquency in Australia, Sydney: Methuen.

Brady, M . and Morice, R. (1982) Abori@nal Adolescent Ofjcending Behauiour: A Study of0 Remote Communily, Adelaide: Flinders University of South Australia, Western Desert Project.

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