To achieve racial justice, we must self-determine meaningfully

6 Aug 2020

The struggle for self-determination in justice must move beyond platitudes and develop mechanisms which translate principle into practice. Self-determination can be achieved at all levels of justice.

To achieve racial justice in Australia, government must loosen its grip on the justice system and hand control over to Indigenous people 

The global spread of the Black Lives Matter movement, triggered by the murder of George Floyd, has forced the Australian mainstream to reckon with the immense scale of Indigenous incarceration and deaths in custody and has created new momentum for change.

As activists and advocates embrace opportunities for reform generated by BLM, a key question emerges: how will the BLM movement succeed in curbing racialised police violence and reversing endemic Indigenous incarceration rates where previous efforts have failed?

Though the implications of BLM in the US and Australia overlap in many ways, there are key differences. In the US, the call to value Black lives draws on a political tradition of civil rights which promotes equal treatment by state institutions. In Australia, BLM occurs in the context of colonisation. The call to value Indigenous lives extends beyond equal treatment and includes the recognition of Indigenous sovereignty and the right to self-determination.

While recent reports have gathered dust (a 2018 ALRC report on Indigenous incarceration is yet to be acknowledged by government) and new Closing the Gap justice targets have been criticised for lacking ambition, the promotion of self-determination in justice has the potential to create real change.

The United Nations Declaration on the Rights of Indigenous Peoples defines self-determination as the right of Indigenous peoples to pursue their economic, cultural and social development. The Declaration acknowledges the right of Indigenous peoples to live by their own law, make law and administer law.

In addition to being a right, self-determination is good justice policy. Research from Australia and North America indicates that self-determination is associated with positive social and economic outcomes, including reduced crime. Self-determination can help to improve the legitimacy of the justice system in the eyes of Indigenous people. It can also correct the one-size-fits-all approach of the justice system so that it better responds to the needs and circumstances of Indigenous people. Self-determination has been a key theme in recommendations of major inquiries, including RCIADIC and the NT Royal Commission into youth detention.

In response to community activism, self-determination has been carved out in varying degrees in health care and, more recently, in other areas of service delivery such as child protection and housing. The justice system has proved more difficult terrain.

Self-determination in justice directly challenges the authority of the state in one of its core functions, namely, the administration of the criminal justice system. For this reason, it is unsurprising that Indigenous justice reforms have tended to promote Indigenous participation in existing processes rather than Indigenous-led decision-making. A key struggle lies in persuading government to loosen its grip on the administration of justice and hand over control to Indigenous communities. This struggle must contend with political realities. The desire to tear down the prison wall must be balanced against the expediency of chipping away at it, brick by brick, by developing effective community-based alternatives.

A further challenge lies in giving effect to self-determination. Self-determination is a nebulous idea which government can co-opt in official policy with limited implications for practice. The struggle for self-determination in justice must move beyond platitudes and develop mechanisms which translate principle into practice.

Self-determination can be achieved at all levels of justice. Starting at the top, Indigenous people may be given a say in drafting law through mechanisms such as a parliamentary voice as proposed by the Makarrata, designated parliamentary seats, or alternative mechanisms being considered by state-based treaty processes. Recent Victorian bail reforms have intended to restrict bail for serious offenders but many Indigenous low-level offenders have been caught in the net due to issues of homelessness, irregular employment and past low-level offending. The effect of these laws can be fatal. Veronica Nelson was charged with shoplifting and denied bail on New Years’ Eve, 2019. Two days later, she was found dead in her cell.

Expanding self-determination in the legislative process will result in better laws for Indigenous people and will help to mitigate laws which disproportionately expose Indigenous people to prison and police violence, such as recent Victorian bail reforms.

Indigenous prison receptions (sentenced and unsentenced) and selected bail reforms, Victoria

Source: Corrections Victoria

Self-determination in the delivery of justice services and programs is undermined by funding uncertainty. Governments repeatedly fail to adequately fund Indigenous-led services and programs due to a preference for mainstream options and a paternalistic unwillingness to hand responsibility over to Indigenous organisations. Indigenous control of the purse strings may be expanded through treaty mechanisms which enable Indigenous self-government over service delivery, such as those negotiated in British Columbia, Canada, or service commissioning models which prioritise Indigenous objectives over government-defined deliverables, such as the Whanau Ora model in Aotearoa New Zealand.

Self-determination in local justice responses may be gained through justice reinvestment. Justice reinvestment is the idea that funding should be redirected from prisons to early intervention and prevention programs. Justice reinvestment promotes self-determination by prioritising community-led decision making. The Maranguka Justice Reinvestment Project in Bourke, NSW, was found to significantly reduce reported incidences of family violence, youth offending, breaches of bail and days spent in custody and coincided with an increase in year 12 retention rates.

In criminal justice processes, self-determination may be advanced by taking ownership of responses to wrongdoing away from the state and returning it to the community. In response to Maori activism, in 1989 the Aotearoa New Zealand youth justice system was overhauled and Family Group Conferencing (FGC) became the default response to youth offending. FGC draws on principles of restorative justice and Maori culture and brings together offenders, victims, families and communities to repair and respond to harm. These reforms led to a dramatic reduction in the number of young people in court and detention.

Self-determination in justice is a necessary response to BLM calls for racial justice in Australia. The response must also address the broader context of colonisation and the role of police and prisons in dispossession, displacement, massacre, child removal and other harms. Truth-telling processes such as those proposed by the Makarrata and the Victorian Treaty Assembly have the potential to bring about public recognition of these harms and can be a catalyst for structural reform.

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