2.3 Understanding the history of incarceration of Aboriginal and Torres Strait Islander people, as well as the relationship of incarceration with other governmental modes of regulation, enables an appreciation of the complexity of addressing the over-representation of Aboriginal and Torres Strait Islander peoples in the contemporary criminal justice system. Professor Russell Hogg has argued that to make sense of the high levels of Aboriginal incarceration, ‘it is necessary to connect it to other forms of regulation of the Aboriginal population’. However, as Hogg has further noted, this ‘cannot be approached as a linear succession or smooth progression from one mode of regulation to another’.
Early years of British settlement
2.4 The Colony of New South Wales was said to be established, in legal terms, by settlement or occupancy, rather than by cession or conquest. The significance of this for the application of law to both Aboriginal and non-Indigenous people in the new colony was explained by Deane and Gaudron JJ in Mabo v Queensland [No 2] (Mabo [No 2]), the landmark decision recognising the survival of native title rights and interests in Australia:
once the establishment of the Colony was complete on 7 February 1788, the English common law, adapted to meet the circumstances of the new Colony, automatically applied throughout the whole of the Colony as the domestic law except to the extent (if at all) that the act of State establishing the Colony overrode it. Thereafter, within the Colony, both the Crown and its subjects, old and new, were bound by that common law.
2.5 Thus, Aboriginal people, with their own systems of law, were immediately and unilaterally held to be subject to a foreign system of law, including the criminal law.
2.6 Deane and Gaudron JJ went on to set out the practical reality of settlement for Aboriginal people:
The first days of the Colony were peaceful in so far as the Aboriginal inhabitants were concerned. They gave up, without dispute, the lands initially occupied by, and in connexion with, the penal camp.
As time passed, the connection between different tribes or groups and particular areas of land began to emerge. The Europeans took possession of more and more of the lands in the areas nearest to Sydney Cove. Inevitably, the Aborigines resented being dispossessed. Increasingly there was violence as they sought to retain, or continue to use, their traditional lands.
2.7 The expansion of settlement brought with it continued dispossession of Aboriginal peoples. Resistance by Aboriginal people was often met with violence. Though they were notionally British subjects, violence against Aboriginal people was not often punished, both because of attitudes toward Aboriginal people, and the fact that settlement often proceeded ahead of colonial authority.
2.8 While the general body of British law was considered to apply in the new colony, the application of criminal laws to Aboriginal people was less clear, especially where offences were committed by one Aboriginal person against another Aboriginal person. Hogg has suggested that the primary concern of colonial authority was less on ‘the space of contact’ between settler and Aboriginal people than violence inter se.
2.9 In the early years of British settlement, Aboriginal people were not frequently subject to imprisonment. Professor Mark Finnane has observed that this can be explained by the fact that, while Aboriginal people were being dispossessed of their land,
prisons were originally of limited importance in that process. Imprisonment, after all, is a legalised detention for the trial or punishment of offenders. It operated within the common law assumptions of a jurisdiction over subjects sharing a common heritage. The ambiguous legal position of Aborigines, and the state of guerilla warfare on the frontiers, meant that the prisons of the settled parts of Australia were largely filled by the new settlers, not by those who were being colonised.
2.10 However, rates of imprisonment of Aboriginal people in the early years of settlement varied across the country, largely corresponding to the spread of European occupation:
The greatest concentrations of Aboriginal prisoners at the end of the nineteenth century were not in those regions of most complete colonisation in south-eastern Australia but in the remoter areas of north Australia. … In south-eastern Australia, dispossession was relatively rapid and completed, for the most part, by the middle of the nineteenth century. The structure of criminal justice institutions was still being formed. Where Aboriginal occupation was not being reduced by disease and starvation, it was eradicated by violence. The occupation of northern Australia took place in a different political climate. Centralised police forces, a magistracy governed from the capital cities of the colonies. Supreme Courts which expected some observation of legal standards, urban political classes which were occasionally sensitive to the abuses of colonisation—all these forces encouraged a greater attention to the formalities of justice—and to the uses of the prison, rather than the summary justice of the rifle. In this context, it is not surprising to see prison play a role in the management of Aboriginal resistance in the late nineteenth century which was unknown in New South Wales a half century or more before.
2.11 Imprisonment of Aboriginal people was particularly a feature of the early development of Western Australia (WA), and included the establishment, in 1840, of a prison specifically for Aboriginal people on Rottnest Island. Imprisonment of Aboriginal people in WA was intensified by a 1902 amendment to the Criminal Code that provided that
summary jurisdiction could be exercised in the case of any ‘aboriginal native’ who pleaded guilty to a charge for a non-capital offence. The magistrates could award a sentence of up to three years imprisonment, in contrast to their usual limit of two years.
2.12 The use of this provision had the result that, ‘[i]n 1905, Aborigines comprised 32% of the Western Australian prison population, in 1909 more than 42%’.
Protection and assimilation
2.13 Beginning in the late 1800s and early 1900s, a policy of ‘protection’ was adopted toward Aboriginal and Torres Strait Islander peoples, which involved their removal onto missions and reserves, and extensive government control over all aspects of life. The ALRC summed up these policies in its 1986 Report, Recognition of Aboriginal Customary Laws:
formal and extensive policies of ‘protection’ were aimed at isolating and segregating ‘full-blood’ Aborigines on reserves and at restricting contact (and interbreeding) between them and outsiders, while attempting to assimilate ‘half-castes’, and especially their children. The right to marry was limited, as were other civil rights …
Church missions and Government settlements were set up and Aborigines were moved onto them. Special laws prohibited the consumption of alcohol, restricted the movement of Aborigines and regulated their employment. There were systematic efforts through the establishment of ‘boarding houses’ to take ‘part-Aboriginal’ children away from their parents and to educate them in European ways.
2.14 Protection legislation created an alternative regulatory regime for Aboriginal people that meant their contact with the mainstream criminal justice system was limited during this era, with Finnane suggesting that Aboriginal and Torres Strait Islander peoples were shifted ‘out of the domain of citizenship and criminal justice into a welfare enclave’.
2.15 Police played a key role in administering protection legislation. For example, under the Aborigines Protection Act 1909 (NSW) police functions included:
- issuing rations;
- patrolling and maintaining order on unsupervised Aboriginal reserves;
- recommending on the disposal of reserve land;
- expelling ‘trouble makers’ from Aboriginal reserves;
- removing children from their parents and sending them to the Aboriginal Protection Boards’ training homes;
- expelling light-coloured people from Aboriginal reserves; and
- instituting proceedings to remove whole Aboriginal communities from certain localities.
2.16 Finnane has noted the rapid reduction in incarceration rates of Aboriginal people in WA following the enactment of a protection regime. From 42% of prisoners in 1909, in 1915, Aboriginal people comprised 13% of the prison population. Dr Don Weatherburn has also suggested that the growth of employment of Aboriginal people in rural economies may have played a role in reducing the imprisonment rate in this period.
2.17 Equally, the dismantling of the protection era appears to have had an effect on the incarceration rate of Aboriginal people, with some leading academics arguing that the
growing appearance of Indigenous people in the mainstream prison system needs to be read against the demise of an alternative system of penality that had been reproduced in protection legislation. The racially defined carceral regime of missions and reserves was increasingly replaced by the mainstream mechanisms of the criminal justice system.
2.18 Weatherburn has suggested that perverse consequences from some aspects of formal equality extended to Aboriginal people under later policies of ‘assimilation’ may help explain the increased contact of Aboriginal people with the criminal justice system. For example, in the 1960s, Aboriginal employment in rural areas began to decline, the result of a number of factors, including the decision that Aboriginal station workers were entitled to be paid award wages. This loss of employment on cattle stations also involved, for many Aboriginal people, a loss of contact with traditional land. Laws restricting sale or consumption of alcohol to or by Aboriginal people were also removed, which may have led to an increase in alcohol-related harms, including offending. As Hogg has explained, when protection measures were removed:
Aboriginal communities were suddenly subject to the full and immediate brunt of market and legal institutions and pressures in environments that nonetheless remained deeply hostile to Aboriginality. The stable social fabric, including traditions of property ownership, education, stable employment and so on, which might have allowed Aboriginal people to assume a place in that society was almost totally lacking, because it had been the purpose of segregationist policies to destroy it … When the dense social and governmental fabric that underpins and enmeshes the ‘law-abiding’ citizen is considered, there can be little surprise that for Aboriginal communities administrative segregation in its various forms gave way to penal incarceration for so many of their members.
Increasing concern over incarceration rates: the Royal Commission
2.19 The changing rates of incarceration of Aboriginal and Torres Strait Islander peoples could not be systematically tracked until the advent of a national prison census in 1982. As Weatherburn has summarised:
These data revealed, for the first time, the enormous over-representation of Indigenous Australians in prison. The ratio of Indigenous to non-Indigenous imprisonment rates per head ranged from 3.3 in Tasmania to 29.0 in Victoria. As the 1980s progressed, the number of Indigenous prisoners increased.
2.20 Growing attention was also drawn to the high number of Aboriginal deaths in custody. Concern over this issue prompted the establishment, in 1987, of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). The RCIADIC examined both individual deaths of Aboriginal and Torres Strait Islander people in custody occurring between 1 January 1980 and 31 May 1989, as well as underlying social, cultural and legal issues associated with the deaths.
2.21 The RCIADIC found that Aboriginal people were not more likely than non-Indigenous people to die in custody. Instead, the high number of deaths in custody was the result of gross over-representation in custody: ‘too many Aboriginal people are in custody too often’.
2.22 The RCIADIC made 339 recommendations for change. These comprised, broadly:
- 126 recommendations related to underlying issues;
- 106 recommendations relating to over-representation in the criminal justice system;
- 107 recommendations relating to deaths in custody.
2.23 The RCIADIC found that ‘a multitude of factors, both historical and contemporary, interact to cause Aboriginal people to be seriously over-represented in custody’. It insisted on the relevance of history ‘because so much of the Aboriginal people’s current circumstances, and the patterns of interactions between Aboriginal and non-Aboriginal society, are a direct consequence of their experience of colonialism and, indeed, of the recent past’.
2.24 Significantly, the RCIADIC asserted that the fundamental causes for over-representation of Aboriginal people in custody were not located within the criminal justice system. Instead, ‘the most significant contributing factor is the disadvantaged and unequal position in which Aboriginal people find themselves in the society—socially, economically and culturally’. As a result, the Report was ‘largely concerned with demonstrating the existence of that inequality and disadvantage in many aspects of social life and social situation’. It showed ‘how this disadvantage and inequality is closely linked to the disproportionate numbers of Aboriginal people in custody, directly and indirectly’, and ‘made recommendations about reducing and eliminating disadvantage’.
Russell Hogg, ‘Penality and Modes of Regulating Indigenous Peoples in Australia’ (2001) 3(3) Punishment and Society 355, 357.
Mabo v Queensland [No 2] (1992) 175 CLR 1, 80.
In 1986, the ALRC completed an Inquiry into Aboriginal Customary law, and concluded that Aboriginal customary law should be recognised, and that any recognition should occur against the background and within the framework of the general law. It considered that the particular form of recognition of customary law might vary with context and with the issue being addressed. In relation to criminal law, the ALRC concluded the general law should in appropriate cases take into account or allow for the customary laws and traditions of local Aboriginal groups, without being displaced by them: Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) . See also NATSILS National Aboriginal & Torres Strait Islander Legal Services, Submission 109.
Mabo v Queensland [No 2] (1992) 175 CLR 1, 104.
The history of the Torres Strait is addressed in more detail below.
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) ; Hogg, above n 1, 358.
It took until 1836 for it to be settled by the Full Court of the Supreme Court of New South Wales that it had jurisdiction to try one Aboriginal person for the murder of another: R v Murrell (1836) 1 Legge 72
Hogg, above n 1, 359.
Mark Finnane, Colonisation and Incarceration: The Criminal Justice System and Aboriginal Australians (The Trevor Reese Memorial Lecture, Sir Robert Menzies Centre for Australian Studies Institute of Commonwealth Studies, University of London, 1997) 4.
Ibid 5. Palm Island also operated as a penal settlement for Aboriginal people in Queensland, as well as a reserve to which many Aboriginal, and some Torres Strait Islander people were removed under protection legislation: Queensland Government, Palm Island: Community History <www.qld.gov.au/atsi/>; Don Weatherburn, Arresting Incarceration—Pathways out of Indigenous Imprisonment (Aboriginal Studies Press, 2014) 13–14.
Finnane, above n 9, 6.
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986) ch 3 .
Finnane, above n 9, 6.
Christine Jennett, ‘Police and Indigenous Peoples in Australia’ in Mike Enders and Benoit Dupont (eds), Policing the Lucky Country (Hawkins Press, 2001) 50, 52.
Weatherburn, above n 11, 14.
Chris Cunneen et al, Penal Culture and Hyperincarceration: The Revival of the Prison (Routledge, 2016) 32.
See further Thalia Anthony, ‘Reconciliation and Conciliation: The Irreconcilable Dilemma of the 1965 “Equal” Wage Case for Aboriginal Station Workers’  Labour History 15.
Weatherburn, above n 11, 15–17.
Hogg, above n 1, 366.
Weatherburn, above n 11, 19.
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Letters Patent.
Ibid vol 1, [1.3.3].
Chris Cunneen, ‘Racism, Discrimination and the over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues’ (2006) 17(3) Current Issues in Criminal Justice 329, 335.
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 2 pt C.
Ibid vol 1, [1.7.1].
Ibid vol 1, [1.7.2]–[1.7.4]. The Australian Government accepted all but one of the recommendations, and committed $400 million to do so. State and territory governments agreed to report annually on the progress of implementation: Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Deaths in Custody 1989 to 1996 (Report prepared for Aboriginal and Torres Strait Islander Commission, 1996) ch 11. Mixed views have been expressed as to the extent of implementation of the Royal Commission’s recommendations: see further Weatherburn, above n 11, 26–9.