Larissa Behrendt -Achieving Social Justice Indigenous Rights and Australia’s Future

Robyn Oxley

Introduction

Before I begin this chapter, it is imperative that I position myself within the literature I am about to engage with. I am a Tharawal and Yorta Yorta woman. A proud Aboriginal woman who does not reside on my country. It is important for me to acknowledge that I am a visitor on Wurundjeri land, part of the Kulin Nation in Victoria. I pay my respects to the traditional and ongoing owners of the land on which I conduct my research. I also pay my respects to the author on whom this essay is based on. Larissa Behrendt is a Eualeyai/Kamillaroi woman, a Distinguished Professor at the University of Technology Sydney. Distinguished Professor Behrendt completed a LLB/B; Juris at the University of New South Wales and went on to complete an LLM and SJD at Harvard University. Larissa is one of Australia’s foremost leading thinkers about social justice. She is knowledgeable in this area as she is an Aboriginal woman, who was born a few years after the 1967 referendum, which saw the change in how Aboriginal and Torres Strait Islander people were seen as citizens in their own country and included in the national census. Larissa has not only completed her legal studies, she is an expert in her field, and her contribution to law and social justice will be celebrated not only by the current researchers, but the future generations.

The purpose of this chapter is to examine what was happening around the time Larissa Behrendt (2003) published Achieving Social Justice: Indigenous Rights and Australia’s Future. It takes the reader on a journey through the eyes of an Aboriginal scholar, whose research is in Criminology and Indigenous Justice. It is important to learn from the ways of Aboriginal scholars as the knowledge system of Aboriginal people date back to over 60,000 years. This chapter explores the main issues of policy and legislative changes that occurred within Behrendt’s book and what has happened post the release of this publication. The rhetoric around government and Indigenous affairs will be examined with outcomes and purpose, uncovering the difficulties in achieving social justice. Although each policy, Royal Commission, and/or legislative amendments are discussed, the purpose of this chapter is to convey the frustration and hardship faced by the Aboriginal and Torres Strait Islander communities around Australia, in the struggle for social justice.

As I begin to read this leading work by Larissa Behrendt, it has me reflecting quite a substantial amount on what it means to achieve social justice in the context of a Western legal system not designed for or by the Aboriginal and Torres Strait Islander people. We are some 17 years post this published work, yet we -Aboriginal and Torres Strait Islander people - are grossly overrepresented within the criminal justice system. Deaths in custody remain higher than the ten year lead up to the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) recommendations published in 1991 (Deaths Inside, 2019). The imprisonment rates of Aboriginal women have increased by almost 2.5 times from what they were at the time of the RCIADIC (Walters and Longhurst, 2017). Aboriginal youth, in the Northern Territory alone make up 100 percent of youths in detention (Allam et al., 2019). So while our Aboriginal men, women, and children continue to be under the scrutiny of what is termed ‘the criminal justice system’, I begin to wonder what social justice is and can it be achieved in a society that believes the social constructs of what it is to be an Aboriginal person living in Australia today.

This chapter will begin by referring to some statistics on where we were around 2003, compared with 2017-2019 in Australia. There are bushfires, lack of water resulting in a drought, attacks on Aboriginal identity, sovereignty', and the fight for self-determination. Although there are many areas that require immediate attention, for example, health and well-being, education, and housing to name a few, the purpose of this essay is to understand how social structures and environmental factors impact the lives of Aboriginal and Torres Strait Islander people in relation to the overrepresentation within the criminal justice system. This will be closely aligned with the article of 2003 by Larissa Behrendt on achieving social justice.

Aboriginal and Torres Strait Islander people are overrepresented within the criminal justice system. This is not restricted to certain states and/or territories but to Australia as a whole. To elaborate further, each State and Territory will be explored since the article by Larissa Behrendt was published in 2003. According to the Australian Bureau of Statistics (2002), the total population of Aboriginal and Torres Strait Islander people in Australia as of 30 June 2002 was 20 percent. According to the Australian Bureau of Statistics (2002), the estimate resident population of Aboriginal and/or Torres Strait Islander population in Australia was 2.4 percent as of 30 June 2001. If we examine the current population of Aboriginal and Torres Strait Islander people in Australia and the prison population of Aboriginal and Torres Strait Islanders, we will see that there have been significant increases in the prison population compared to the total population. According to the Australian Bureau ofStatistics (2017), the estimated population of Aboriginal and/or Torres Strait Islanders was 3.3 percent; as of 30 June 2019, the Australian Bureau ofStatistics (2019) record that the prison population of Aboriginal and/or Torres Strait Islanders was 28 percent. The timing and climate in which this article was published will be explored to understand what was happening in the political and social arena. It is imperative to understand what is going on, not only within the criminal justice system, but all that contributes in the aspiration of achieving social justice.

In order to go forward, we must look back and explore the history of Aboriginal and Torres Strait Islander people since colonisation began, with initial contact between the European settlers and Aboriginal people. This is imperative if we are to understand why the current policies and legislation continue to negatively impact the lives of Aboriginal people. To begin, the overrepresentation of Aboriginal and Torres Strait Islanders have been a constant theme when it comes to criminology and law in general. There has been little change since Larissa Behrendt’s publication. We can see this clearly in the population of Aboriginal and Torres Strait Islanders in the prison system compared to the actual population in each State and Territory. In 2001, the Aboriginal and Torres Strait Islander prison population for each State and Territory was as follows: in New South Wales (NSW) 17 percent, in Victoria (Vic) 4.5 percent, in Queensland (Qld) 25 percent, in South Australia (SA) 16.6 percent, in Western Australia (WA) 31 percent, in Tasmania (Tas) 14.3 percent, in the Northern Territory (NT) 68.8 percent, and in the Australian Capital Territory (ACT) 10.4 percent of all people in prison identified as Aboriginal and/or Torres Strait Islander.

When we compare the above statistics to the total population of Aboriginal and/or Torres Strait Islander people in each State and Territory, it is clear that the numbers are disproportionate. Exploring the statistics from the same year, 2001, in NSW, the percentage of Aboriginal and/or Torres Strait Islanders was

• 2.1 percent, in Victoria 0.6 percent, in Qld 3.5 percent, in SA 1.7 percent, in WA 3.5 percent, in Tasmania 3.7 percent, in the NT 28.8 percent, and in the ACT
• 1.2 percent. This was around the same time as Behrendt’s publication on achieving social justice was published, and from these statistics alone, we can clearly see the need for such work to have much needed attention. The mere fact that Aboriginal and Torres Strait Islander people are subject to a legal system that has never been designed to be fair and equitable is evident in the response of the criminal system towards the First Nations Peoples of Australia.

We must look at what was occurring around the time of these statistics. We saw the Federal election taking place, with the Liberal government winning for the third consecutive time. During his term as Prime Minister from 1996 to 2007, Howard changed the way in which Australia controlled Aboriginal and Torres Strait Islander business. Howard left many legacies in his four terms as the Prime Minister of Australia from 1996 to 2007. For Aboriginal people, this legacy was the interference with the process of achieving social justice. We saw a movement or shift from when the Royal Commission into Aboriginal Deaths in Custody recommendations were released to the consistent increase of Aboriginal and Torres Strait Islander people in prison.

Post the RCIADIC, two major cases threatened the existence of terra nullius, meaning land belonging to nobody (Ritter, 1996). First was the Mabo case, where Eddie Koiki Mabo fought until the end of his life for land rights in the form of Native Title for the Mer people of the Torres Strait Island. This case was significant, in that, the High Court overturned or rejected the doctrine of terra nullius, which is the foundation of‘land grabbing’ (Sarre, 1994). The second case was the

Wik decision, where it was found that Native Title could only be extinguished by an act of government or law. Why these two cases have been mentioned is that they both threatened the existence of how Australia was ‘founded’.¹ It was around the same time that the Liberal party was campaigning for the Federal election in 1996.

In response to the Wik case, in particular, the Howard government formed the Native Title Amendment Act 1998 (Cth). This was an amendment to the Native Title Act 1993, which was to ensure that any claims that Aboriginal and Torres Strait Islander people made in relation to Native Title were restricted, making it difficult for Aboriginal and Torres Strait Islander communities to apply for Native Title. Behrendt (2003) articulated the rhetoric around the decision to amend the Native Act 1993 through actions and speeches that Howard made to the public. This was the way to get the public on board with what he was proposing. In current times, Bruce Pascoe’s (2014) Dark Emu raises questions over the legitimacy of agriculture and cultivation of the land by Aboriginal and Torres Strait Islander people. Pascoe (2014) dispels the social constructs of Aboriginal people being nomadic, social outcasts (Dudgeon et al, 2010), especially how Howard ‘blatantly dismissed a nation of people’ (Langton quoted in Chenery, 2018) throughout his term as Prime Minister.

Before this section begins, I would like to acknowledge that the Stolen Generation will be explored. I would like to acknowledge the sensitivities around this policy. The recording of children being forcibly removed by the government is from 1910 to 1970 (Wilkie, 1997). However, we still see children being forcibly removed from their families in 2020. Therefore, this part of the research will focus on the time frame of 1910-1970, for which the Bringing Them Home report was established. Around the same time as Howard was amending the Native Title Act 1993, he was also presented with a report regarding the Stolen Generations. The Bringing Them Home report was published in 1997 (Wilkie, 1997). This report was a national inquiry into the forcible removal of Aboriginal and Torres Strait Islander children from their families, a policy that was enforced up until the 1970s. This policy forcibly removed children from their families, breaking kinship ties and connection to community, land, and culture. As a leader in Australia, Howard made comments in relation to this report by stating the following (Australian Government, 2016):

I didn’t accept the conclusion of the Bringing Them Home report that genocide had been practised against the Indigenous people.

He further stated that T didn’t believe genocide had taken place, and I still don’t’ (Australian Government, 2016). For a person with the power he held as Prime Minister to dismiss the conclusion of the report and findings of genocide in Australia was felt by all those that were impacted and victims of the Stolen Generation. To give an indication as to what kind of treatment we are discussing here, an excerpt from Ack and Bloodworth (2007):

In 1949, Millicent was four years old. That’s when she and five of her siblings were taken from their parents and placed in institutions. She never saw any of them again, apart from one brother who was subsequently removed to another institution.

The authorities told Millicent that her parents didn’t want her, when actually they prevented them from visiting her. After a horrific childhood consisting largely of domestic servitude, beatings and religious indoctrination, Millicent was sent into unpaid domestic service, where she was raped, bashed and slashed with a razor for resisting. On reporting the rape, she was beaten for lying. The resulting pregnancy earned her yet more beatings. Millicent was overjoyed to have a baby - someone she could love - but her joy was short lived. They took her baby away and told her the infant had died - a lie only revealed when the two were reunited many years later.

The Bringing Them Home report by the Australian Human Rights and Equal Opportunity Commission (1997) tabled many examples of child abuse, sexual abuse, and physical abuse and the impact that forcibly removing children from their families has had on individuals and Aboriginal and Torres Strait Islander communities around Australia. These stories come from the victims themselves, both primary and secondary victims. Just to clarify the difference and define each primary and secondary victim, according to the Victims of Crime Assistance Tribunal (2016), a primary victim is defined as someone who is injured or impacted directly by a criminal offence, a crime committed against them, whereas the secondary victim is someone who is impacted by the offence or crime by being present and witnessing the crime/offence. The denial of such an act of genocide is extremely dismissive. Albeit, Howard was not going to admit to this as it would mean that his whole life and all that he had been taught and believed would be proven false. Howard truly believed ‘that one generation cannot accept responsibility for the acts of an earlier generation. I don’t accept that as a matter of principle’ (Howard quoted in Davis Herald, 2008). This comment was made at the Kennedy School of Government at Harvard University in 2008. This was his argument throughout his time as Prime Minister and continued to defend this position well after he was defeated in the 2007 Federal election by Kevin Rudd from the Labour government.

In 2007, the Little Children Are Sacred report was published due to issues of child abuse in the Northern Territory of Aboriginal children (Wild and Anderson, 2007). This report detailed sensitive information regarding the treatment of Aboriginal children in Aboriginal communities throughout the Northern Territory. It was in response to the Federal government and Council of Australian Governments (COAG) who formed the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities. This summit resulted in the COAG expressing concern with ‘some Indigenous communities suffer from high levels of family violence and child abuse’ (COAG, 2006: 12). It is difficult to know where to begin with this policy as there is so much to this that impacted the lives of, arguably, the most vulnerable people in Australia (Altman and Hinkson, 2007; Altman and Hinkson, 2010; Maddison, 2008; Brown and Brown, 2007). The reason the NT Intervention was such a contentious policy was around the rhetoric of the government. As previously mentioned, there was much discussion and fear campaigning (Foley and Anderson, 2006) by the government in relation to Native Title and land rights movement. The government used the media and their platform to instil fear among society. As Giles (2002: 206) states:

The Prime Minister produced a map of Australia with shaded areas to indicate that about three quarters of Australia was up for grabs by Indigenous Australians under native title laws. The message seemed designed to instil fear and division. Through 1997 and 1998 media reports about native title included stories of threats to family farms and commonly, it was thought that suburban backyards were also under threat.

The purpose of re-visiting, this time in Australia, is to show that the response by the government remained disproportionate to the actual response that was needed in order to ascertain the real depth of issues that were raised in the Little Children Are Sacred report published in 2007. Although many scholars have argued that the response was inadequate and did nothing to stop the harm towards Aboriginal children (Shaw, 2013; Calma, 2009; Brown and Brown, 2007), it seemed as though past Prime Ministers also had a view on how racist the process was, of intervening with paramilitary policing in each community, controlling movement, income and money, cultural practices, education, health and sport, justice, and life in general. Former Prime Minister Malcom Fraser spoke on Lateline, which aired on 8 March 2012, regarding the NT Intervention (Jones and Fraser, 2012). Fraser commented on this programme stating that:

If you could translate it back over 100 years under AO Neville, the Protector of Western Australia would be proud of this legislation. It is racist. It is paternalistic.

This statement is talking about AO Neville, the third Chief Protector of Aboriginal Affairs from 1915 to 1940 (Tomlinson, 2008), who made all Aboriginal children under 21 years of age to remain under his legal guardianship (Jacobs, 1986: 15). What Fraser is stating is that under the Howard government’s response of the NT Intervention, Howard established legislation to the effect of what AO Neville would be in favour of: the continued dispossession of Aboriginal people off country, the forcible removal of children from family, and losing kinship ties, language, and culture. There is quite a substantial amount of detail in the NT Intervention; however, the purpose is to convey the importance of repeated legislation and policy that impacts the success of achieving social justice: what has stood in the way, how it continues to stand in the way, and what can be done in order to show that the rhetoric is disproportionate to what society/community needs from leaders in government. In Behrendt’s (2003) work on achieving social justice, there is much stress on the importance of ensuring that self-determination is a key factor in the initiatives that lead institutional change. What comes of these comments and continued policies questions whether Australia is ready or open to ensuring that

Larissa Behrendt - Achieving Social Justice 157 self-determination is a main factor in the decision-making process of Aboriginal and/or Torres Strait Islander people, made by Aboriginal and/or Torres Strait Islander people. If the government, any government at State and/or Territory' and Federal level, are genuine in achieving social justice for all people in society, then they must continue to assess the implications of such legislatives measures that impact Aboriginal and/or Torres Strait Islander people and their communities.

According to the Australian Human Rights Commission (2011): ‘The NTER legislation applied to a wide range of “prescribed areas” in which Aboriginal people are the sole or predominant inhabitants, including Aboriginal land, declared town camps and other declared areas’. Some of the significant features of the NT Intervention package included:

• • Bans on the sale and consumption of alcohol in prescribed areas;
• • Bans on the possession and supply of pornographic material in prescribed areas;
• • Compulsory acquisition by the Commonwealth of five-year leases over declared Aboriginal land, Aboriginal ‘community living areas’, and town camps;
• • Denial of compensation;
• • The exclusion of customary' law and cultural practice as a factor relevant to sentencing and bail decisions;
• • The application of income management to residents of prescribed (and other declared) areas;
• • The denial of review by the Social Security Appeals Tribunal of income management decisions; and
• • Modifications to the permit system to allow greater access to Aboriginal land.

It must be noted that the Howard government needed to, and succeeded in, suspend the Racial Discrimination Act 1975 (Cth) in order to get the NT Intervention passed through government (Calma 2009). This Act was established to prevent racial discrimination towards any race in Australia. As Triin (1984) has researched, there have been many complaints in his study between 1975 and 1981, which is after the Act was enacted, that were mainly reported by Aboriginal people. Trlin (1984) also states that this cannot possibly account for data on the actual amount of racism experienced by Aboriginal people. This particular case study was post the enactment of the Racial Discrimination Act 1975 (Cth), and we must consider the impact that the suspension of this Act in 2007 has had on Aboriginal and Torres Strait Islander people since. It wasn’t until 2009 that the Federal government lifted parts of the legislation in the Northern Territory'. An ABC (2009) article quotes Federal Indigenous Affairs Minister Jennifer Macklin stating that:

The Government would begin a consultation process with Indigenous communities to design a compulsory' income management policy which can operate without the need to suspend the Racial Discrimination Act.

To have these kinds of statements show that the government continues to feel responsible and ensure they have complete control over the lives of Aboriginal people in Australia. This statement lays claim that the reason the Racial Discrimination Act 1975 (Cth) was suspended was due to Aboriginal people’s behaviour. It seems almost a favourable gesture that Aboriginal communities be entitled or lucky enough to ‘consult’ with an agency that placed them in disrepair to begin with.

As we move into Howard’s completion of his reign as Prime Minister in 2007, Kevin Rudd, Labour Party, was the victor in the 2007 Federal election (Kissane, 2008). One of the first things that Rudd accomplished was the apology. Before this apology was made in 2008, there were limitations in relation to Prime Minister Rudd making this apology. These limitations were expressed before the apology was made. An activist journal article (Robson, 2008) stated:

Despite calls by Aboriginal groups to include a compensation plan, PM Kevin Rudd’s government has continued to rule out any national compensation fund to go with the apology.

In Australia, any other group that has been impacted by policy or wrongdoing have the right to apply for compensation. According to Shine Lawyers (2019) website, there have been three class actions in Australia’s history to date:

• • SP AusNet/Utility Services Group - This class action lawsuit was filed on behalf of the 10,000 survivors ofVictoria’s 2009 bushfires and the 119 people who died. SP AusNet and Utility Services Group were found responsible for a faulty electricity cable which caused the start of the fire. In 2014, AU$500 million was paid to those effected.
• • Australian banks - There have been ten class actions against Australian banks in relation to the fees they charged their customers. These banks included Commonwealth Bank, ANZ, Westpac, and NAB. They were accused for syphoning AU$400 million from customers. In 2015, ANZ won to appeal the decision that their late fees were too high to the High Court of Australia. This is an ongoing class action.
• • Sigma Pharmaceuticals - Sigma was accused of engaging in deceptive conduct by 600 shareholders. In 2012 the settlement was approved for AU$57.5 million.

Given that the apology was made and the policies and legislation impacted on the lives of the Stolen Generations, it should be clear that a compensation plan be put in place. It is clear that since the apology was made, no compensation was to be awarded, so now what? Where do the Aboriginal communities stand and how is the government going to address the current and past policies of child removal. It is necessary to include the importance of Behrendt’s (2003) points on achieving the most appropriate outcomes through law and law reform. We see that other people/victims in society are compensated, specifically the case against

Gerald Risdale who was found guilty of child sexual abuse. In an article, written by Michael Sainsbury, which explained the landmark case against the Catholic Church, Sainsbury (2019) stated that:

Catholic institutions in Australia are feeling the impact of the abuse payouts, include tens of millions of dollars already paid out under victims’ compensation plans.

We have seen the Royal Commission into Institutional Responses to Child Sexual Abuse final report (Wright et al, 2017), and from that report, there have been numerous cases of child sexual abuse with successful compensation claims (see Sainsbury, 2019; Hall, 2019). However, when it comes to abuse and crimes committed against Aboriginal and/or Torres Strait Islander people and communities, there is a large refusal and exclusion through governmental disempowerment foi-compensation to be awarded to the victims of the Stolen Generations. By refusing compensation, the barriers in achieving social justice continue.

In 2017, a movement that Peter Boyle (2017) covered, the Grandmothers Against Removal (GMAR) began to lobby and fight for the prevention of child removal. Thornburn and Syed (2017) interviewed the GMAR and published the following:

‘Sorry means you don’t do it again’ is a refrain often heard at GMAR rallies. It has been nearly a decade since Kevin Rudd’s apology, yet child removal rates have increased by 400%. ‘The apology was a meaningless thing’, says Aunt Deb. ‘A lot of people thought the Stolen Generation had finished. The apology was to the older generation but it’s a continuing Stolen Generation’.

For the successful achievement of social justice, it must be clear in what the intentions are. We can see clearly from the apology that Rudd (2008) states:

A future where this Parliament resolves that the injustices of the past must never, never happen again.

But it does. It continues to happen. According to the GMAR (Thornburn and Syed, 2017), ‘aboriginal children are placed in out-of-home care at a rate ten times that of non-Aboriginal children, with a placement rate of 52.5 children for every 1000 compared to 5.5 for ever}' 1000’. This is close to ten years after the apology. How do Aboriginal and Torres Strait Islander people have a seat at the table and a say in their own affairs without the constant interruption and intervention of government? In Behrendt’s (2003) argument on Indigenous rights, we must change the social constructs of Aboriginality. We can do this by changing the way the law responds to Aboriginal and/or Torres Strait Islander people. The rhetoric around what it is to be Aboriginal is outdated, and we need to accept the varying areas of Aboriginal communities. This includes breaking down the stereotypical Aboriginal community to include urbanised Aboriginal community and/or person, the regional and the remote/rural (Brown et al, 2009). Behrendt (2003) makes it clear that in order to have Indigenous rights, we must have self-determination and with that comes the control of government over Aboriginal affairs to cease and be placed back into the hands of Aboriginal people.

The Close the Gap Campaign

aims to close the health and life expectancy gap between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians within a generation. The campaign is built on evidence that shows significant improvements in the health status of Aboriginal and Torres Strait Islander peoples can be achieved by 2030. (Human Right Commission, 2019)

The objective of this campaign was reviewed after ten years post the establishment of the Close the Gap Campaign. This is another attempt on changing Aboriginal and Torres Strait Islander people, not a change in the system nor a change in the way the government relate to Aboriginal and Torres Strait Islander people. It has been argued by scholars and government bodies whether the campaign has been successful. This is problematic for a range of reasons. Aboriginal and Torres Strait Islanders are a diverse group of people, as is each community, and therefore require a diverse approach to addressing disproportionate prejudice. Pholi (2009: 9) states that ‘“Success” is defined by the extent to which Indigenous Australians conform to a set of pre-determined, measurable characteristics of the non-Indigenous ideal, while “failure” is any outcome that falls below, or manifests outside the scope of these ideal indicators’. This implies that Aboriginal and Torres Strait Islander people must integrate into systems that have been implemented and designed to ‘help’ them. To call it for what it is - assimilation - is to call out the government for the continued policies that have led to Aboriginal and Torres Strait Islander distrusting these types of campaigns and systems. It is basically stating that in order to separate from disadvantage and move beyond the data is to ‘be like us’. This has been happening since the colonisation began on this continent. It will never work until both sides work together to build a better future for everyone. Not when one side takes charge from the other. This is how we achieve social justice. As Behrendt (2003: 6) states:

The importance of removing historical ignorance surrounding the experiences and situation of Indigenous Australians, including reconciling Australians with their history and understanding the way historical acts leave contemporary legacies. Creating a concrete rights framework that will protect the basic rights of all Australians, especially those of one of the most vulnerable groups in Australian society, the Indigenous community.

These two main aspects that Behrendt states are crucial if we are going to achieve social justice. The Close the Gap Campaign does the opposite. It denotes the work that has been done in the space of self-determination, ensuring Aboriginal and Torres Strait Islander people make decisions on issues and/or affairs that impact the lives of them and their communities.

Royal Commission into the Detention and Protection of Children in the Northern Territory (RCNT) was established on 1 August 2016. It was created to investigate the treatment of children and young people in detention centres throughout the Northern Territory. The investigation was also extended to the welfare system in the Northern Territory. One of the first tasks of this particular Royal Commission was to examine which or what procedures were and were not working. This was undertaken through a series of‘jobs’. The RCNT (Australian Government, 2016: 3) explains as follows:

• 1 Asking people to give submissions or ideas to the Commission
• 2 People providing written statements to the Commission about their experiences
• 3 People giving their evidence/telling their story in the court.

Following the completion of these jobs, the Royal Commission then made recommendations on improving the outcomes, policies, and law for young people and children in detention in the Northern Territory. Looking at detention, specifically, the Royal Commission Report (Australian Government, 2016: 7) revealed what the commission had found:

• • youth detention centres were not fit for accommodating, let alone rehabilitating, children and young people
• • children were subject to verbal abuse, physical control and humiliation
• • children were dared or bribed to carry out degrading and humiliating acts, or to commit acts of violence on each other
• • youth justice officers restrained children using force to their head and neck areas, ground stabilised children by throwing them forcefully onto the ground, and applied pressure or body weight to their “window of safety”, being their torso area, and
• • isolation has continued to be used inappropriately ... which has caused suffering to many children and young people and ... lasting psychological damage.

One of the main points for exploring this particular Royal Commission and the relationship to social justice is that Royal Commissions are established to investigate important issues that the public share a growing concern for. The main recommendation was: ‘Closing the current Don Dale Youth Detention Centre and High Security Unit’ (Australian Government, 2016: 8). Although this did occur, the Northern Territory Government, some 18 months later, ‘will spend $70 million replacing Darwin’s Don Dale detention centre and the Alice Springs youth detention facility’ (Gibson, 2018). At what stage is it that the recommendations from Royal Commissions will be taken seriously? The questions remain as to how do we, as a society, come together to achieve social justice and what does the future look like for Aboriginal and Torres Strait Islander people within the criminal justice system? We, as Aboriginal people, look to the future generations to pass down our knowledge and continue the legacy which our ancestors have passed on to us. If we are going to achieve social justice, then we need to change the way the system responds to Aboriginal people and labelling Aboriginal and/or Torres Strait Islander people as inherently criminal through over policing (Cunneen, 2007). The way we make change is to ensure that law and legislative measures are practised in a way that ensures equality for all people. The legal neutrality of the State must be at the forefront of decisions made in relation to Aboriginal and/or Torres Strait Islander people and communities.

The Uluru Statement from the Heart was established in 2017. This statement was a ‘call for the establishment of a “First Nations Voice” in the Australian Constitution and a “Makarrata Commission” to supervise a process of “agreement making” and “truth-telling” between governments and Aboriginal and Torres Strait Islander peoples’ (McKay, 2017: 1). The First Nations Convention saw 250 Aboriginal and Torres Strait Islander people gather at Uluru, in the Northern Territory’ in 2017. This historic event saw the development of the Uluru Statement from the Heart (Council, 2017). This statement calls for a constitutionally enshrined Aboriginal voice in Parliament, a truth-telling commission to heal the past, and a treaty' that ensures an agreement between the Aboriginal people and government improves the conditions of Aboriginal people in all aspects of their life. It also promotes the United Nations Declaration on the Rights of Indigenous People (UNDRIP) in their right to practice self-determination. The Uluru Statement from the Heart closes with a powerful message (Council, 2017):

In 1967 we were counted, in 2017, we seek to be heard. We leave base camp and start our trek across this vast country’. We invite you to walk with us in a movement of the Australian people for a better future.

This is robust in the following drivers: voice, truth, and treaty. This is the order in which it is needed to secure the purpose of the statement to address the disadvantage that Aboriginal people are consistently under, by’ the Australian Government (McKay, 2017). However, the Uluru Statement from the Heart, specifically the treaty’ aspect of this statement, is a retrofit that should have been established at the initial contact between Aboriginal people and the British Empire (Davis, 2018). Davis (2018) further adds, ‘Treaties are about reparations for past injustices and about land and resources’. The relationship between the Uluru Statement and achieving social justice is a progressive way’ forward as a nation. To have a collective shared statement from Aboriginal communities all over Australia is a way’ to move forward in an attempt to establish self-determination policy. The reason as to why’ self-determination has not been successful as a policy’ is explained by’ Behrendt (2018):

‘Self-determination’ as a policy failed because, while it changed the dominant philosophy of paternalism to the notion of self-management, it co-opted Indigenous people into decision making processes but did not seek to alter structures or institutions. It did not seek to give Aboriginal people, at the grassroots level, capacity to make decisions over the policies that affected them and the programs that were delivered into their community. In short, the policy of ‘self-determination’ did not go far enough in devolving power from government to Aboriginal people.

Behrendt’s (2018) later publishing, which makes a contemporary observation, explains further that self-determination will only be successful if more Aboriginal and Torres Strait Islander people are involved. In relation to the Uluru Statement and the many different nations engaging in dialogue together shows that there is a possibility and call for self-determination. The most difficult thing about this particular statement is that the then Turnbull government rejected a call for one voice in Parliament. If we, as a society, are truly dedicated and committed to improved outcomes for Aboriginal and Torres Strait Islander people, then it starts with everyone. Social justice will never be achieved when one side is doing the labour-intensive work and the other side is rejecting and blocking the rights of the Indigenous people.

The overrepresentation of Aboriginal and Torres Strait Islanders within the criminal justice system is a common theme amongst criminologists, academics, and scholars in law. In Victoria 2019, we saw a landmark case of an Aboriginal death in custody. Aunty Tanya Day, a Yorta Yorta grandmother, died in 2017, 17 days after being arrested for falling asleep on a train. What resulted from this particular death in custody is a sign of the times changing. There are two main parts of this case. The first was a call to end the laws that enforced public drunkenness as a crime. This occurred in 2019 in the days leading up to the coronial inquest of Tanya Day who was held in custody for this summary offence (Wahlquist, 2019). The second main point focuses on the coroner’s request to investigate whether systemic racism contributed to the death of Tanya Day (Fletcher, 2019). Systemic racism is different to individual racism, and in this case,

systemic racism means that a woman like Ms Day, was around 10 times more likely to be targeted for being drunk in public than a non-Indige-nous woman. This is despite public drunkenness being an offence that most Victorians commit, whether it’s leaving the footy, a pub or a club. (Human Rights Law Centre, 2017)

The latest coroner’s statement reflects the need for systemic changes within the criminal justice system as the findings indicated that ‘Ms Day’s death was clearly preventable had she not been arrested and taken into custody’ (Percy, 2020). I finish with this case in particular as the outcomes from a death in custody have been stnall wins for the Aboriginal community. It is a bitter pill to swallow to know that lives are lost in custody, and we continue to have deaths while in custody. Since 1991, when the Royal Commission into Aboriginal Deaths in Custody handed down the 339 recommendations to prevent further deaths in custody from occurring, there have been further 424 Aboriginal deaths in custody (Allatn et al, 2019).

Conclusion

Achieving social justice should not be at the hands of Aboriginal and Torres Strait Islander people, organisations, and communities. This approach must be on the shoulders of those who lead in Australia. This is the collective responsibility of Aboriginal and Torres Strait Islander people and non-Indigenous Australians. In order for social justice to be achieved, white Australia must acknowledge the past and the impact of colonisation, the ongoing intergenera-tional trauma, the loss of cultural practices, the tokenistic approach to inclusion, the continued overrepresentation within the criminal justice system, and so on. This chapter and the scholarship of individuals such as Larissa Behrendt should make all of us reflect on what it means to be an Aboriginal and/or Torres Strait Islander living in a colony that initially denied its existence, controlled the movements and lives, and continues to do so through current practice and policies. If we are truly going to achieve any form of social justice, the wrongs must be written and acknowledged, self-determination a definite action within all things involving Aboriginal and Torres Strait Islander business and an understanding that our knowledge and belief systems are not to be brushed aside and treated as inferior.

Aboriginal and Torres Strait Islander protest against the policies and legislation have been explored throughout this research because it is part of our legacy. We have been placed with the responsibility of building upon the legacy from our ancestors and passing it on to the next generation(s). This responsibility or obligation is part of who we are as Aboriginal people. Behrendt has and continues to build on that legacy that pushes the boundaries and accountability of policy and legislation makers within each successive government.

In order to achieve social justice, we must direct the attention away from the dominant paradigm that continues to push the agenda of Aboriginal people being the cause of their own social injustice and move towards unpacking the systemic failures that continue to occur and ensure that the overrepresentation of Aboriginal and Torres Strait Islander people ceases to exist. We can see this beginning to occur with the Tanya Day death in custody case. It is a landmark case with the coroner finding that system racism could exist and the death would have been preventable. We must start looking at the systems, the institutions that are designed to exclude Aboriginal and Torres Strait Islander people, if we are going to get anywhere in achieving social justice.

Larissa Behrendt certainly opened the door for Aboriginal scholars to walk through behind her. The response from Aboriginal scholars in relation to the

Larissa Behrendt - Achieving Social Justice 165 apology has opened up an area within university institutions in raising Aboriginal voices. Scholars such as Bronwyn Fredericks, Aileen Moreton-Robinson, Anita Heiss, and Megan Davis to name a few contributed to the legacy of Aboriginal knowledge. Alison Whittaker said in a speech to the 2018 Aurora Indigenous International Study Tour participants that ‘she may be the first Gomeroi woman to complete a PhD at Harvard University, however, she is certainly not the most capable to do so’ (Whittaker, 2018). This quote is significant as it shows that although the ‘door’ has been left open, there is a legacy that is continued, and we must, as Aboriginal scholars, follow in the steps of our ancestors in building on the legacy and passing it onto the next generation(s).

Note

1 Please note that Australia cannot be ‘founded’. You cannot find something that was not lost. There was and continues to exist the oldest continuing living culture (Moses, 2011).

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