Aboriginal women and the law


Printed here are major portions a position paper prepared by the National Committee to Defend Black Rights. Titled "Miscarriages of Justice in Australia: Aboriginal Girls and Women", it is already circulating internationally. NCDBR chairperson Helen Corbett at the International Indigenous People's Conference and the Earth Summit in Brazil in June, and to the United Nations Working Group on Indigenous Populations. Dolly Eatts, national secretary of NCDBR, has distributed it in France, the Netherlands, to the European Parliament and on the Indigenous Discovery Tour of Europe.

Much has been written about the impact of the Australian criminal justice system on Aboriginal men. What is happening to Aboriginal women is an untold story in Australia, and the situation is alarming. The situation of Aboriginal women and children needs to be heard.

Aboriginal women have survived 204 years of violent colonial dispossession, alienation, poverty, rape, assault and murder. Aboriginal customary law was overthrown by the colonial, racist and patriarchal judicial system, based on a false legal framework (terra nullius/empty land) in 1788.

Conservative estimates show that today our death rate is four times higher than the rest of the community, life expectancy is up to 22 years shorter, infant mortality rates are up to three times higher and hospitalisation rates three to five times greater. Every indicator of social and economic status shows that our people continue to suffer a colonised existence in poverty.

In Australia it is very clear that the state legitimises violence against women. It has never been able to provide indigenous women and children with basic human rights. It has not provided us

with the standards of health, housing, education, employment etc, that it has for non-Aboriginal Australians.

Aboriginal women have no faith in the criminal justice system, as clearly expressed by a Cape York woman:

"If a white woman gets bashed or raped here, the police do something. When it's us they just laugh. The fellow keeps walking around, everybody knows but nothing is done."

An Aboriginal woman living in an urban area said:

"How can we call the police in? They come with their guns drawn, and an innocent person gets killed."

Aboriginal women are often ashamed to report rapes and be subjected to the sneering interrogation of young white male policemen with their sexist and racist questions. And if Aboriginal women take their cases to the judicial system, they have to listen to sexist and racial arguments being condoned by the courts. Rape and assault of Aboriginal women is not seen to be a serious as rape of non-Aboriginal women. The following statement was in a report to the Queensland Office of Aboriginal Women:

"I have found that the majority of sexual/physical assaults against Aboriginal women are not reported. Most women are terrified of the police interrogation where anything from a woman's sexual history to whether she is a fit mother or not is brought out into the open. Reporting an assault sometimes seems to be just as traumatic as the actual assault."

Many Aboriginal women experience violence. The Equal Opportunity Commission (WA) Report 1990 states:

"It was claimed that police were slow and unwilling to attend violent situations, often refusing to acknowledge their seriousness."

During the 1989 National Aboriginal Day celebrations in Sydney, eight plain-clothed police officers fired four shots at a crowd of Aboriginal people which largely consisted of women and children, in pursuance of a wanted Aboriginal man. Clearly this incident, like the others above, illustrate that Aboriginal women experience very little justice in their lives.

Inside prison walls

The prison system has itself been shown to be more dangerous and violent than the outside society. Aboriginal women make up a disproportionately large number of the prison population. In 1989, Aboriginal women were almost 50% of all women in custodial care although Aboriginal women represent less that 1.5% of the national female population.

The number of Aboriginal women in prison in all Australian jurisdictions rose from 78 in the 1987 prison census to 127 in the 1991 census. This represents a 63% increase in the imprisonment of Aboriginal women during the climate of the RCIADIC [Royal Commission Into Aboriginal Deaths in Custody]. The rate of imprisonment of Aboriginal women in New South Wales has risen by 168%, and in Western Australia by 54%.

The number of Aboriginal people imprisoned in NSW rose from 369 to 664 and in WA from 503 to 624. An emphasis on law and order policies clearly victimises those who need the most relief in the community — Aboriginal people in general and Aboriginal women in particular.

The ratio of Aboriginal women going to prison compared to non-Aboriginal women is increasing. The ratio of Aboriginal female prisoners to female prisoners (16.3%) generally was greater than that

for males (14.1%). The recidivism rate for Aboriginal women is 75% compared to 29% for non- Aboriginal women. This is within an environment where authorities are tending to favour non-custodial sanctions for low-risk offenders (the majority of women prisoners). Thus we conclude that non-custodial sanctions are being used for non- Aboriginal low risk offenders whilst we are being recharged and reincarcerated.

The most frequent offences committed by Aboriginal women involve non-payment of fines, drunkenness and social security fraud. This is not surprising when Aboriginal women are the least employed and the least economically secure group in Australia. Over-

policing of minor public order offences — that is, racist practices — are locking up and terrorising our sisters, mothers and daughters.

Evidence was presented to the Inquiry Into Racist Violence(1991) which indicated that Aboriginal and Islander women and girls have been sexually threatened and abused by police officers. The following are some examples:

In Mossman (northern Queensland) an Aboriginal woman alleged that she had been raped by a police officer whilst in custody. There were also complaints from Alice Springs that Aboriginal teenage girls had been assaulted and raped by police officers and other white males. One woman who gave evidence said police in Townsville had threatened to rape her, and issues of sexual harassment of Aboriginal woman were raised in Redfern, Sydney. A youth worker in Adelaide told the inquiry about an incident of alleged rape of a 15-year-old girl by police officers. According to the youth worker the girl was too terrified and ashamed to lodge a formal complaint. An Aboriginal welfare worker told of a serious police assault on her daughter, who was pregnant and who miscarried as a result of the violence. Besides being assaulted, the girl was allegedly raped by police officers whilst in custody. According to her

mother, the young woman was too traumatised by the event to lodge a formal complaint. Aboriginal girls have been referred to as "black molls" and "black sluts" by the authorities.

Aboriginal women are confronted by the dual barriers of racism and sexism. We are confronted by a historically and contemporarily racist police force. We deserve a justice system which provides care and protection. However, the colonial state legitimates acts of violence and police have been given the "licence" to kill, rape and assault Aboriginal women and children because they are not held accountable for their actions.

Our children

We are afraid of the consequences the current "law and order" regimes are going to have on our children and future generations.

A South Australian study found that while the number of all children admitted to institutions has 1ncreased, the ratio of Aboriginal to non-Aboriginal children has increased. In some states the level of over-representation for Aboriginal girls in juvenile institutions is far greater than for adults.

A recent report released by the SA Office of Crime Statistics states that more than half the young Aboriginals in South Australia have appeared before the justice system; 7:10 Aboriginal boys and 4:10 Aboriginal girls have been in trouble with the law.

In 1989, the Human Rights and Equal Opportunity Commission reported that in one state 77% of the inmates in maximum security institutions for juvenile girls were Aboriginal.

A large number of charges are for public order offences (hanging around the street) and offences against the police (not cooperating with the

police). The visibility of Aboriginal girls on the street makes them obvious targets for police keen to make arrests. Many girls complain of sexual intimidation, ranging from snide remarks and innuendos to name calling and physical harassment, by police. Such harassment allegedly includes strip searching as a regular feature of police practice.

The New South Wales Summary Offences Act (1988), the NSW Sentencing Act (1989) and the WA Juvenile Crimes Sentencing Act (1992) directly contradict the thrust of the recommendations of the RCIADIC. For example, the NSW Sentencing Act has increased the average length of juvenile detention sentences by 42%, increasing the number of Aboriginal people detained in corrective institutions and the likelihood of them being transferred to prison because of overcrowding. The NSW Summary Offences Act (1988) introduced new offences, such as "offensive behaviour" and "offensive language", which provide the police with wider avenues for policing of Aboriginal communities.

The Western Australian government's response to the recent spate of tragic crimes involving juveniles was to introduce the Crimes (Serious and Repeat Offenders) Sentencing Act 1992. In effect, juvenile repeat offenders will face mandatory prison sentences. This legislation breaches Australia's commitment to the United Nations Convention on the Rights of the Child. It is directly targeting the Aboriginal community and will result in mass juvenile Aboriginal imprisonment. Seventy-five per cent of all juveniles in detention in Western Australia are Aboriginal, the highest rate in the country, and this legislation will send even more Nyoongars to jail. It is in complete contradiction to the recommendations of the RCIADIC, which say imprisonment should be the last resort.

The effects of dispossession have fallen most heavily on Aboriginal women because we are often dependent on the state and have lost our

traditional status. Aboriginal women face human rights abuses against ourselves and deal with the consequences of discrimination against our children, husbands and sisters. There is a clear lack of custodial care and protection when we come into direct contact with the justice system. On the other side of the coin, we do not use the system because we do not want to send our own people to jail, a racist institution, which could mean a death sentence for our people. Aboriginal women live in a society which offers them no legal care and protection, a basic human right as well as a right of citizenship.

The social impact of the increased powers of the police needs urgent attention, as they are inherently opposed to RCIADIC recommendations on policing Aboriginal communities. We fear the long-term effects of "white law and order" on our children, next generations and our culture.

Final comments

The findings of the Royal Commission Into Aboriginal Deaths in Custody (1991) and the Inquiry Into Racist Violence (1991) clearly indicate that police attitudes towards Aboriginal people have not improved. In fact, the evidence shows that they have deteriorated.

Police violence based on race remains a major area of concern and should be a priority on the political agenda. To date, no police officer has been charged in connection with any of the Aboriginal deaths in custody examined by the RCIADIC.

Aboriginal deaths in custody are a breach of the United Nations International Covenant of Civil and Political Rights, of which Australia is a signatory and thus legally obliged to observe. Federal and state governments have shown themselves to lack commitment in addressing the issue of Aboriginal deaths in custody. By not actively opposing racism,

they are condoning it.

Traditionally, women in Aboriginal culture have a status comparable with and equal to men. We have our own ceremonies and sacred knowledge, as well as being custodians of family law and secrets. Today, Aboriginal women are portrayed as passive victims of non-Aboriginal and Aboriginal men and of colonial assimilationist policies (for example, institutionalised and forced adoption of Aboriginal children). The effect of colonisation and patriarchy has been to undermine the status of Aboriginal women. It has led to our disempowerment, to downgrade our role in society and attempts to silence our cultural voice.

Solutions do exist, yet they have to come from the Aboriginal community. Aboriginal women need to be involved in the process of redefining and articulating customary law: that is, mechanisms of social organisation and social control which allowed Aboriginal society to function before invasion.

We can run and police our own lives in our own communities on our own lands using our resources and with compensation for the invasion of our nations. Aboriginal women have been significantly overlooked with the provision of services to assist with problems arising from alcoholism, domestic violence and lack of respite care. When the ideology of the welfare system retreats to residualism, marginalised groups are often invisible to service providers.

One of the royal commissioners, Elliot Johnston, highlighted the unsatisfactory welfare service delivery to Aboriginal communities. The government is reducing services for women and there is a strong trend towards privatisation; the state is attempting to restructure its services towards more indirect forms of intervention. There is a low uptake of services provided by white professionals and bureaucrats, for both cultural reasons and

experiences of racism. Clearly services to Aboriginal people need to be self-managed and self-


Aboriginal sovereignty, land rights and a strong economic base incorporating Aboriginal community organisations (legal, medical/health, art and craft cooperatives, housing companies, education agencies, employment programs, sporting bodies) need to be supported and encouraged. Community development and social justice options offer the best chance for Aboriginal self-determination.

Aboriginal-run "safe houses", women trained and employed to investigate sexual offences, police aides trained not with an enforcement mentality but with implementing crime prevention programs, dispute resolution, crisis intervention, detoxification units are all alternative solutions to the enormous amount of money poured into policing Aboriginal communities and locking us up.

Any government commitment to implementing the recommendations of the RCIADIC will be shallow rhetoric if the overall thrust of the criminal justice policy is based upon locking up an ever increasing number of Aboriginal people.

We are tired of the institutionalised violence and community violence we face every day. We are tired of government and public apathy towards our efforts to stop the human rights abuses of Aboriginal women and our communities.

Aboriginal women need to be systematically included in decision making. Currently, all too often, only Aboriginal men are being consulted, and this dispossesses Aboriginal women of our place in society, causing attitudes which promote social disruption and violence.

The increase in Aboriginal imprisonment is not the result of increasing criminal offences. Government policy has promoted the increase of imprisonment,

and this had a horrible effect on Aboriginal people.

International pressure has been successful in putting miscarriages of justice on the political agenda in Australia. This paper has illustrated that the level of human rights abuses in Australia is not improving. We demand our sovereignty, our rights to lands and compensation, and an end to racism and violence.