Background

12.3     An Australian Institute of Criminology study in 1988 found that most Australians respected and felt protected by the police forces of the states and territories.^[1] However, an Aboriginal and Torres Strait Islander perspective can differ—given the historical nature of the involvement of police in the lives of Aboriginal and Torres Strait Islander peoples post-1788, where

police came to take on the role of protectors of Aboriginal communities situated on reserves and missions. This role involved them in considerable supervision of Aboriginal people’s lives. It is symbolised by images of them returning runaways in neck and leg chains … It also came to involve the removing children from their families.^[2]

12.4     Many see the 1967 referendum as a ‘watershed moment’, when Australia voted for the betterment of Aboriginal peoples.^[3] Jo Kimara has however suggested that, although policing policies changed following the 1967 referendum, such a change was not necessarily for the better:

Far from being inclusionary, many policing practices became covert and exclusionary. Without specific legislation there was an increase in arrests and incarceration for offences that non-Indigenous people would be unlikely to be arrested for. This was and still is colloquially known as the offence of ‘being Black in a public place’ and encompasses the notorious trifecta legislation of offensive language, resist arrest and assault police.^[4]

Control and intervention

12.5     Early police involvement in, and control over, the lives of Aboriginal people in states and territories was embodied in legislation such as the Aborigines Protection Act 1909 (NSW).For many Aboriginal people in New South Wales (NSW), the involvement of police in their lives under the Aborigines Protection Act remains within living memory. The genesis of discord between police and Aboriginal communities relates to the role police assumed beyond that of conventional policing. Professor Chris Cunneen and Dr Terri Libesman provided the following examples, noting that police:

• issued rations to Aboriginal peoples; determined quantity and reduction in rations;

• withheld rations where children failed to attend school;

• refused to supply rations to Aboriginal people so as to persuade them to move to another locality or on to an Aboriginal reserve or station;

• determined whether a Aboriginal person was sufficiently unwell to see a doctor;

• patrolled and maintained order on unsupervised Aboriginal reserves;

• recommended on the disposal of reserve land;

• expelled ‘trouble makers’ from Aboriginal reserves;

• removed children from their parents and sent them to the Board’s ‘training homes’, on the grounds that they were ‘neglected’ or that they were 14 years of age;

• instituted proceedings against Aboriginal parents who took their children away from Aboriginal reserves or from school in an attempt to escape the Board’s decision that their children be removed from them and ‘trained’;

• expelled light-coloured people from Aboriginal reserves and stopped them from returning to their families still living on reserves; and

• instituted proceedings to remove whole Aboriginal communities from certain localities, under section 14 of the Act.^[5]

Child removal

12.6     Police were also involved in implementing the policy of removing children from Aboriginal families. A particular example in NSW was s 13A of the Aborigines Protection Act 1909, introduced in 1915:

The Board may assume full control and custody of the child of any aborigine, if after due inquiry it is satisfied that such a course is in the interest of the moral and physical welfare of such child. The Board may thereupon remove such child to such control and care as it thinks best.

12.7     This legislation saw the beginning of what became known as the ‘the stolen generation’.^[6]

12.8     Police were central to the operation of the Aborigines Protection Board:

The Aborigines Protection Board was established to manage reserves and the welfare of the estimated 9000 Aboriginal people living in New South Wales in the 1880s. It was part of the Department of Police and was chaired by the Commissioner of Police. It met weekly in Phillip Street in Sydney. Board members … developed legislation in the period 1909 to 1935 that restricted the capacity of Aboriginal people to choose where they lived, enjoy education at the same standard offered to the rest of the community, set their own employment contracts, drink alcohol or receive family endowment in cash. After considerable controversy, the Aborigines Protection Board was replaced by the Aborigines Welfare Board in 1940.^[7]

12.9     The forced removal of Aboriginal children from their parents was part of a broader policy of assimilation, framed by the conviction that ‘the destiny of the natives of aboriginal origin … lies in their ultimate absorption by the people of the Commonwealth and … that all efforts be directed to that end’.^[8]

12.10  The 1997 Bringing Them Home Report of the (then) Human Rights and Equal Opportunity Commission, described the scale of removal across Australia:

Nationally we can conclude with confidence that between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970. In certain regions and in certain periods the figure was undoubtedly much greater than one in ten. In that time not one Indigenous family has escaped the effects of forcible removal (confirmed by representatives of the Queensland and WA Governments in evidence to the Inquiry). Most families have been affected, in one or more generations, by the forcible removal of one or more children.^[9]

12.11  Margaret Tucker set out her experience of having been removed with her sister from her mother by the police:

I thought: ‘Everything will be right now. Mum won’t let us go.’

Myrtle was grabbed by her auntie. We had our arms around our mother, and refused to let go. She still had her apron on, and must have run the whole one and a half miles. She arrived just in time, due to the kindness of Mrs Hill. As we hung onto our mother she said fiercely, ‘They are my children they are not going away with you.’

The policeman, who was no doubt doing his duty, patted his handcuffs, which were in a leather case on his belt, and which May and I thought were a revolver. ‘Mrs Clements,’ he said, ‘I’ll have to use this if you do not let us take these children now.’

Thinking that policeman would shoot Mother, because she was trying to stop him, we screamed, ‘We’ll go with him Mum, we’ll go.’ I cannot forget any detail of that moment, it stands out as though it were yesterday. I cannot ever see kittens taken from their mother cat without remembering that scene. It was just sixty years ago.^[10]

12.12  Dr Christine Jennett has suggested that the long lasting effect of this police involvement in the lives of Aboriginal people has created a legacy of ‘deep mistrust/hatred’ of police in Aboriginal communities.^[11]

Communication barriers

12.13  During consultation with stakeholders, the ALRC was made aware of the desire of both Aboriginal and Torres Strait Islander communities and police to work together, and of failures in doing so successfully. This experience appears long standing. Commenting on his experiences as Royal Commissioner for the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), the Hon JH Wootten AC QC noted communication barriers between Aboriginal communities and the police:

I was struck, as I went around eastern Australia as a Royal Commissioner, by how often I found police officers who were well motivated, anxious to improve relations with the local Aborigines, but disillusioned and frustrated. They would tell me how they had had great plans but Aborigines would not cooperate, how they had called meetings but Aborigines would not come. Then I would talk to leaders of the Aboriginal community and find them equally anxious for constructive change, but equally disillusioned and frustrated. ‘The police will not listen to us’, they would say. ‘They call meetings at times that suit them in places where they are comfortable; they are their meetings, not ours. If we go, they do not want to listen to us, they just want to tell us about their ideas.’^[12]

12.14  Recommendation 215 of the RCIADIC advocated communication and negotiation between police and Aboriginal and Torres Strait Islander communities:

That Police Services introduce procedures, in consultation with appropriate Aboriginal organisations, whereby negotiation will take place at the local level between Aboriginal communities and police concerning police activities affecting such communities, including:

a.   The methods of policing used, with particular reference to police conduct perceived by the Aboriginal community as harassment or discrimination;

b.   Any problems perceived by Aboriginal people; and

c.   Any problems perceived by police. Such negotiations must be with representative community organisations, not Aboriginal people selected by police, and must be frank and open, and with a willingness to discuss issues notwithstanding the absence of formal complaint.

12.15  In preliminary consultations, the ALRC has heard that the relationship between Aboriginal and Torres Strait Islander peoples and police remains fraught in a number of communities.