Broadhurst, R.G. 2002, ‘Crime and Indigenous People’, in Graycar, A. and P. Grabosky, [Eds.], Handbook of Australian Criminology, Cambridge University Press: Melbourne, pp 256-280. Crime and Indigenous People Roderic Broadhurst Authors version September 2002 Abstract Theories of crime applied to explain the over-representation of Indigenous people in the penal system are re-examined by three approaches to Indigenous–governmental relations in post-colonial Australia: Aboriginalism, Welfare Colonialism, and Institutionalism. The colonisation of ‘wild’ country, especially in ‘frontier’ states, and relentless ‘civilising’ has continued to imperil and restructure the Indigenous domain. Modernisation disrupts Indigenous society, nurtures cultural resistance, provokes pathologies in the survivors and conflict at cross-borders. High levels of culture-conflict and stress are reflected in the extremes found in the penal system’s response. Indigenous people’s encounter with post-colonial governments is shaped by the problematic deployment of police and penal institutions in managing ‘self-determination’ and has inspired both new (restorative) and old ‘recovered’ (preventive detention) forms of penal sanction – punishments that exemplify the ambivalence of Indigenous citizenship and the problems of regulating social order in post-colonial settler states. Despite Australia’s commitment to multiculturalism and human rights, the plight of its Indigenous people makes Australia vulnerable to the charge of hypocrisy. Given the legacy of the White Australia policy, persistent criticism of the policing of Indigenous people and their high level of incarceration has become an increasingly sensitive resource in the ‘politics of international embarrassment’ (Magallanes 1999: 265). Australia, in common with other post-colonial settler societies, has very high levels of indigenous participation in criminal justice. Within Australia, however, regional differences are so great that, at least on one measure (police custody), the rate of non-Aboriginal custody in the Northern Territory exceeds that of Aboriginal custody in Tasmania.1

Attempts to explain such variations in imprisonment rates have been largely unsuccessful. Differences in levels of urbanisation, the variable proportion of young males or Aborigines in the population, unemployment, single-parent families, the quantity and severity of crime, conviction rates, remand populations, and size of police forces do not fully account for the variation in imprisonment (Dixon 1981; Harding 1992). The size of the Indigenous population in each State accounted for some of the statistical variation in imprisonment (Dixon 1981: Harding 1992). Consequently, it was speculated that differences in the administration of justice, community attitudes, and demand for punishment may account for the unexplained variance in imprisonment, especially Aboriginal imprisonment.2

Table 12.1 illustrates these long-standing differences in incarceration rates between the Australian States. Differences in the rate of imprisonment between the Indigenous and non-Indigenous population show that the largest disparities are found in Western Australia and South Australia and the smallest in the Northern Territory and Tasmania. The Northern Territory, despite having the highest proportion of Indigenous prisoners, has a relatively small differential rate of imprisonment because of the unusually high rate of non-Aboriginal imprisonment.

Regional differences in the level of Aboriginal criminalisation in Table 12.1 are extreme. For example, Aborigines in Western Australia are six times more likely to be incarcerated than in Tasmania (489 compared to 2946 per 100 000). But the difference

between non-Aboriginal imprisonment rates for Tasmania and the Northern Territory is about 2.8:1 (82 compared to 233 per 100 000 respectively). The punitive response to crime is observed to vary or permutate according to regional or State characteristics. Differences in the political, economic and cultural spheres that constitute these Australian societies, amplified in the case of Indigenous crime by the dimension of social and spatial distance, reveal structural origins for penal variability (Woodiwiss 2001: 166–77).

Differences in the social and economic capital of Aboriginal groups have arisen for many reasons. These include the impact of colonisation (especially the development of remote areas), differential employment opportunities (associated with decline in pastoral and seasonal work), and the structure of Aboriginal governance. These differences challenge current explanations of Aboriginal over-involvement in crime, which are predicated on a (largely) uniform experience of social and economic disparity with ‘White’ Australia. Variations in the intensity and nature of criminalisation among the Indigenous population suggest that ‘racialisation’ and social deprivation explanations over-predict their involvement in crime (Cove 1992). Thus if we are to account for these extremes, variation in the colonial and post-colonial experience of Aborigines appear to be relevant factors, as well as juridical practices.

Official concern reached its zenith in 1987 when the national government appointed a Royal Commission to investigate the high number of Aboriginal deaths in custody. TABLE 12.1 Rates of incarceration by Indigenous status per 100 000 relevant adult population, 2000

Total Indigenous Non-Indigenous Ratio % Indigenous

NSW 151.0 1776.7 129.7 13.7 15.4

VIC 86.1 969.3 82.1 11.8 4.3

QLD 175.5 1595.7 137.6 11.6 21.8 WA 224.2 2945.7 157.5 18.7 31.2 SA 112.3 1599.8 96.4 16.6 16.3 TAS 112.8 488.9 87.3 5.6 11.4 NT 456.9 1211.3 232.9 5.2 62.1 AUST1 142.9 1693.0 116.8 14.5 18.9

Note: 1 The Australian total includes unsentenced persons in ACT prison custody and ACT prisoners are included in

New South Wales. The ‘% Indigenous’ is the proportion of Indigenous people in Australian prisons at census day; ethnic identity is based on self-report at reception.

Source: ABS 2001b.

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC 1991a,b) made numerous recommendations aimed at reducing the excessively high level of Indigenous incarceration, which was seen as the prime cause of the high rate of custodial mortality. The RCIADIC concluded that the chief causes of the over-representation of Aborigines in criminal justice were ‘underlying issues’ – an opinion reminiscent of criminological strain theory (social deprivation). Generally it was assumed that the differential risks between Aborigines and non-Aborigines in imprisonment were, if not the direct result of racial prejudice, at least the indirect result of the ‘underlying issues’ of poverty, unemployment, disenfranchisement, and dispossession. The RCIADIC found that differences in the administration of bail and non-custodial sanctions, especially in remote areas where many Aborigines live, were a major source of variations in the use of imprisonment. In order to reduce Indigenous imprisonment, the power of lay magistrates (who preside in rural areas) to imprison was limited, drunkenness was decriminalised, alternatives to custody were introduced or expanded, and culturally appropriate policing styles developed.

There has been a fundamental shift in criminological interest away from the pathology of the Aboriginal ‘crime problem’ to the central role of the settler-state and the legacies of colonialism. ‘No longer is the central “problem” the deprived Indigenous

subject but … the settlers and how they have conceptualised the indigenous and mobilised the law to legitimate land theft and manage “race” conflicts’ (Broadhurst 1999: 107). It has become necessary to shift the criminological imagination away from the previous focus on judicial bias or racism as the cause of excessive Indigenous imprisonment. The capture of Indigenous public policy by the discourses of the legal-welfare establishment has not led to more effective measures of crime control within Aboriginal communities or to sustained reductions in the rate of criminalisation and incarceration (Carcach et al. 1999; Williams 2001).3 In the absence of a ‘treaty’ or constitutional conciliation, the governance of Indigenous peoples and their relationships with the wider society remains ambiguous and unresolved. Overwhelmingly, Aboriginal violent crime, as is common with many impoverished populations, is internalised and self-inflicted. The consequences are quarantined and often immune to the appeal of reformers, but despite the alarming ‘facts’ are efficiently contained by the criminal justice system – the humanitarian impulse of the early colonial period also failed to contain the brutal deployment of police to solve the ‘native’ problem (Reynolds 1998).

An integrated approach involving comparative, cross-disciplinary, and critical methods can provide new ways of conceptualising Aboriginal over-representation in the criminal justice system and can advance our theoretical understanding of crime causation and control generally.4 Comparisons with Canada and New Zealand, settler societies that also experience excessive over-involvement of indigenous people in crime and imprisonment, are instructive (See LaPrairie 1990, 1995; Doob et al. 1994; Hazelhurst 1995; Landau 1996; Roberts and Doob 1997; Jackson 1999; Pratt 1999; Tauri 1999.)5

These kindred settler states share a common imperial history but their geo-political, cultural, and historical trajectories are very different, sufficient perhaps to reveal the underlying character of neo-colonial Indigenous relations. Despite significant differences in Indigenous culture and in the nature and timing of contact and colonisation (including crucial questions of technical equivalence), they all share a profoundly common outcome in contemporary penal practices.6 Although differences occur in Indigenous–settler relations (the configuration of trade and warfare), mechanisms employed for civilising and ‘domestication’, and constitutional arrangements at the formation of neo-colonial states, these may have little direct impact on the processes of criminalisation. Thus differences in Indigenous criminalisation between the Australian States may also mirror cross-national comparisons of Indigenous crime (see Havemann 1999: 4–10, 468–75).

This chapter briefly describes the nature of Aboriginal crime and the limited evidence on race bias, and reviews criminological theories (strain, conflict, labelling) usually applied to explain the high rate of Indigenous crime and incarceration. Three perspectives drawn from anthropological research on the Indigenous predicament are employed to assess conventional crime theory and interpret regional differences. These are institutionalism, Aboriginalism,7 and welfare colonialism (Rowley 1970, 1978; Berndt 1977; Stanner 1979; Beckett 1987; Haebich 1988; Keen 1988; Hodge and Mishra 1991; Trigger 1992; Rowse 1992, 1993, 1998). The focus of these approaches is diverse, but each addresses Indigenous accommodation, resistance, adaptation, and preservation of cultural beliefs and practices in response to neo-colonial policies of control. These ethnographic and historical approaches remain largely neglected in criminological discussions of Aboriginal crime in Australia. However, common cross-disciplinary themes emerge that show the criminalising power of ideologies of crime and race. The ideological service both anthropological and criminological theory played in legitimating Indigenous governance by the post-colonial state is also, parenthetically, revealed. According to Radzinowicz (1966: 53), ‘the views we hold about why people commit crimes deeply influence our ways of dealing with them. There is a close relation between criminology in the strict sense of the word and penal policy’. By implication, public sentiment shapes penal policy, as recent studies of populism and criminal justice demonstrate (Roberts et al. in press).

The problems faced in developing a fully articulated theory of Indigenous crime are substantial and may not be separated from crucial debates about methodology.8 It should, at least, address classical interests in social structure and their intersection with ideas about neostate formation, modernisation, and civilising processes and how modes of surveillance and penality are transformed. Such a theory should also draw on critiques of colonialism and modernism, especially in the case of settler states (see generally, Foucault 1977; Garland 1990, 1996; Elias 1994; Hall 1997; Johnston and Monkkonen 1997; Spierenburg 1996; Gandhi 1998; Tyler 1999; Eisner 2001; Hogg 2001).

Aboriginal crime and judicial racism Australian research has tended to examine the issue of race bias via deduction from historical sources or the qualitative and observational methods often motivated by advocacy. Despite these limitations, the principal assumption has been that the police are more likely to arrest and charge Aborigines than non-Aborigines, and that the courts are more likely to be punitive in their subsequent dealings with them (e.g. Eggleston 1976; Parker 1977; Sydall 1984).9 A counter-proposition to these assumptions is that Aborigines commit more crime and of a more serious kind, thus accounting for their over-representation in criminal statistics (Brunton 1993).

A comprehensive review of Western Australian criminal justice data showed that Aborigines are 16 times more likely to be a victim of homicide10 and 6.5 times more likely to report to police crimes against the person than non-Aborigines. Among offenders, Aborigines are 9.2 times more likely to be arrested, 6.2 times more likely to be imprisoned by lower courts, 23.7 times more likely to be imprisoned as an adult, and 48 times more likely to be imprisoned as a juvenile than non-Aborigines (Harding et al. 1995). Very high levels of recidivism were also found among Aborigines: 88% of male Aborigines arrested are ultimately rearrested compared to 52% of non-Aborigines, and 75% of Aborigines return to prison at least once compared to 43% of non-Aboriginal males (Broadhurst and Loh 1995).

Aborigines are arrested more often than non-Aborigines for crimes against the person and public-order offences, but they are seldom arrested for fraud and drug offences. Aboriginal victimisation (mostly intra-racial for crimes against the person) was much greater than for non-Aborigines (Harding et al. 1995). Because of the greater risks of victimisation, we can expect higher rates of arrest and incarceration for Aborigines, especially if we take into account the greater frequency of police-initiated arrest for public-order offences. Thus high rates of Aboriginal arrest and incarceration are due, in part, to the higher prevalence and incidence of crime and disorder among Aborigines.

As to the assumption that police are more likely to arrest, data analysed in Harding et al. (1995) showed that Aborigines in Western Australia are 9.1 times more likely to be apprehended when compared with non-Aborigines. If Aborigines were to be incarcerated at approximately the same rate they were arrested, we would expect the risk of incarceration to be about the same at 9.1. But the actual risk of Aboriginal incarceration is about 23:1 or more than twice the proportion expected given arrest risk differentials. Accordingly the second assumption, that courts are more punitive, appears relevant because, once convicted, Aborigines are estimated to be about five times more likely to receive a sentence of imprisonment than non-Aborigines.

The logic of apparently increasing differential risks of victimisation, arrest, and incarceration implies that disparity is amplified the deeper Aborigines enter the criminal justice system, and so it appears as if bias must be the inevitable cause. Despite the compelling nature of this evidence, it is not proof of bias because it crucially fails to control for prior offending, which is relevant because of the significantly higher probabilities of rearrest and the longer criminal careers of Aborigines (Broadhurst and Loh 1995). In any event, the logic breaks down when the expected amplification by the

courts is not reflected in the differential risk of incarceration. Given an arrest differential of 9:1 and about five times greater chance of a custodial disposition, the logic of increasing risks would expect a differential risk of incarceration of approximately 45:1. However, differential risks of incarceration fall short of the predicted disparity and suggest contraction rather than amplification (Broadhurst 1997).

On the pertinent point of bias at initial arrest, one of the few studies employing multivariate analysis was Duguid’s (1996) important follow-up of the better-known studies of Gale and Wundersitz (1987) and Gale, Bailey-Harris and Wundersitz (1990). The latter observed that police–Aboriginal contacts were highly affrontive, hostile, and presumptive on both sides. The consequence of these hostile relationships heightened the likelihood of arrest but was mediated by employment status rather than ethnic status. However, Duguid’s study of race differences in the arrest patterns of Adelaide juveniles showed there was indeed a substantially greater risk of arrest for Aboriginal youth. Most of this heightened risk of arrest was attributed to differences in offence, prior record, and extra-legal factors such as employment and family status, but the residue risks might be the consequence of harsher treatment (racial bias by police) or other factors not measured. Thus ‘Aboriginality’ may be a factor or variable that catches a number of stigmatising characteristics (e.g. truancy, unemployment, substance abuse) and in this sense operates as a shorthand ‘predictive’ model for police as to who is a high-risk juvenile.

Borland and Hunter’s (1997) multivariate analysis of self-report arrest data also found a striking interaction between arrest and unemployment and they demonstrated the negative effects of arrest on employment opportunities. They estimated that the differences in arrest rates could explain about 20% of the differences in the employment rates of the two populations. Their study illustrated the effects of arrest on economic marginality and further risks of criminalisation. The interaction between unemployment and increased chances of involvement with the law suggests that poverty significantly mediated the criminalisation of Aborigines. Homel and associates (1999), in a review of risk and protective factors relevant in Indigenous communities, found that factors such as parental supervision and multiple social adversities do not predict Aboriginal violence to the degree expected by conventional theories.11

Homel and colleagues (1999: 192) note how Indigenous people, despite being vulnerable to a multitude of problems, ‘manage to protect their young people from even worse harm against overwhelming odds’. They suggest giving more attention to cultural resilience and the different meanings attached to crime, and recommend that community crime prevention in Aboriginal communities should be based on ownership of the processes that determine the strategies to be pursued. Weatherburn and Lind’s (2000) epidemic model also sheds light on the key role that economic and social stress play in the disruption of parenting; it reorients social disorganisation theories of delinquency towards the problem of the transmission of moral order. This approach is useful in making the link between socio-economic stress and cultural strength dimensions (see the analysis of conflict-stress explanations below).

These studies suggest that class and class–race interactions are a key factor in generating higher arrest levels for Aborigines. Another crucial aspect was the much younger age of arrest of Aborigines compared to non-Aborigines. The relatively younger age of arrest for Aborigines reflects cultural differences in child-rearing and parental supervision as well as a higher proportion of single-parent and welfare-dependent families. Moreover, early onset of a ‘criminal career’ presages greater risks of adult arrest, which is ultimately reflected in the higher risks of Aboriginal incarceration. Thus despite the imprecision of estimates, it is difficult to sustain the proposition that over-representation is the product of bias simply amplified by the criminal justice process. Consequently, it is sensible to look not only at the courts or police but elsewhere to explain the differential risks of crime, violence, and criminalisation of Aborigines.

Crime theory and Indigenous crime Explanations of Indigenous crime have usually drawn uncritically on the crime causation literature and focused on the differences between Aborigines and non-Aborigines. Rarely are these theories applied explicitly to explain differences between Aborigines. To the extent that Aborigines are theorised as representing a dangerous underclass or subculture, the application of social disorganisation or conflict theories has been unproblematic. Australian criminology has usually relied on traditional theoretical explanations to account for the high levels of Indigenous crime. These include those based on heredity or constitutional factors (socio-biological), individual psycho-pathology (individual positivism), social deprivation and disorganisation (strain/stress), labelling or interactionist notions (cultural or racial stereotypes, social reaction theories), control theory (family dysfunction and under-socialisation), and conflict theory (different values). Multifactorial and synthesised theories of Indigenous crime causation have rarely been offered and no comprehensive theoretical account of Aboriginal crime in Australia has emerged, though two explanations dominate (Gale et al. 1990; LaPrairie 1995; Lincoln and Wilson 1995; Tyler 1998). Official accounts stress social deprivation, which is ultimately remedial through development, while the critical literature emphasises conflict theories remedial by social justice, land rights, and compensation. Labelling or social reaction notions and aspects of control theory are frequently incorporated into both these accounts as supporting theories.

The appeal of deprivation or strain theory explanations (cf. Agnew 1992; Merton 1995) rests on the assumed manifest poverty, alienation, all-pervading anxiety, stressed conditions, and ‘dispossession and powerlessness’ of Aboriginal people, exemplified by greater risks of mortality and morbidity. Dispossession is particularly destructive because it breaks the symbiosis between land and culture, past and present (moral reproduction) and weakens the association between the material and the spiritual culture. Because of this, deviance or criminal behaviour is one of the few means open to those deprived of the capacity to assert identity or acquire the material benefits of the Australian lifestyle. Alternatively, substance abuse provides temporary escape from the stigmatisation of poverty and low self-esteem. The high rates of unemployment, poor education, poor health, and high levels of crime all testify to the extent of deprivation and thwarted opportunity. The poverty cycle is associated with race and crime; hence Aborigines become associated with crime, are ‘labelled’, and then are expected to confirm the stereotype characterised above. In practice this means that all Aborigines come under more intensive surveillance, especially by police, because of their ‘lawlessness’ or ‘dangerousness’, and a self-fulfilling prophecy is generated. From the perspective of Gottfredson and Hirschi’s (1990) ‘general theory’ of crime, multiple adversity, especially during socialisation, manifests in a low level of self-control which amounts to a generalised personality trait (impulsiveness, immediate gratification, risk-taking, and indifference to others’ needs) that explains crime at the individual level.

The dominant view of crime as pathology albeit acutely realised in ‘disorganised’ Indigenous communities, has served to deflect criticism of the ways in which legal and social positivism (particularly its realisation in the liberal welfare state) conspire to render the ‘truth’ of conquest and its consequences invisible. The historic and economic forces that drive the numerous forms of individual and social pathology found in Indigenous communities are rendered invisible, and although crucial, seldom inform the debate about the causes of Indigenous crime. Partly this is because colonial land theft and post-colonial suppression of cultural identity are seen as purely historical facts – remnants of a bygone era – whose purchase on the present is too indirect to ‘cause’ crime now. The emphasis on pathological environments also fails to recognise that neo-colonial economic and political processes, albeit masked by modern sensibilities and techniques of control, continue to challenge traditional (and nascent) land ownership and Indigenous identity.

Interest in conflict theory was stimulated by a revisionist history that documented the struggle or ‘warfare’ between the races over land use (e.g. Gill 1977; Green 1981; Reynolds 1981; Rose 1991). This struggle, which has continued to the present day, is illustrated by the settlers’ faith in progress: ‘[the] north contains wealth, offering scope for the profitable employment of capital and labour – wealth that has too long lain dormant, wealth that the ever expanding demands of civilization will soon require to be exploited to its utmost’ (Sir James Mitchell, foreword to Morrow 1937). This re-evaluation of Aboriginal–settler relations destroyed the myth of settlement without conquest and culminated in the celebrated High Court cases of R v Mabo 1993 and R v Wik 1995 which established common law native land title, overturning the long-established doctrine of terra nullius. The essential theme of conflict theory, whether applied to minorities or to social class, is that the legitimacy of the law is rejected by the ‘deviant’ group because it fails to recognise or represent their values.12

Anthropological studies of Indigenous responses to colonisation provide another way of understanding Aboriginal criminalisation in post-colonial Australia. The three themes from this literature mentioned above – Aboriginalism, institutionalisation, and welfare colonialism – are now employed to review and develop criminological theories of Aboriginal crime and criminalisation.

Aboriginalism

‘[This] ongoing colonial encounter which we call “Australia” ’. (Rowse 1993: 129)

The most general theoretical source of Aboriginal criminalisation is the concept of ‘Aboriginalism’, which reflects the more general idea of ‘racialisation’. Here racial difference is embodied in all the discourses and practices found in the relationship between Aborigines and the dominant non-Aborigines, such that status and rights are primarily regulated by race. This concept also has intellectual connections to hereditary, constitutional, or biological causes of crime and variants of labelling theory. The socio-biological thesis with its origins in phrenology remains a popular notion, especially when blended with the other ‘causes’, among some segments of the Australian public (Sercombe 1997). The notion of socio-biological causes of Aboriginal crime is now more likely to be explained in terms of vulgarised cultural heritage and loss of tradition. Aboriginal culture is reduced, for example, by the tendency to ‘go walkabout’ (unreliable workers), communal sharing (disregard for private property), the lack of cultural wisdom regarding European imports such as drinking (alcohol abuse), and customary law or ‘payback’ (lawlessness). Constitutional or biological causes of Aboriginal crime have usually (in contemporary accounts) been deployed as discredited theories of crime causation linked to crude Social Darwinism, but they continue to surface in discussions of Aboriginal alcoholism and crime (Broadhurst 1994; Hall et al. 1994).

While aspects of labelling theory are implied in the generation of stereotypical accounts of the ‘other’ that constitute Aboriginalism (and presumably severe in the case of individuals who are both Aborigines and labelled criminals), it is not the theoretical source. Aboriginalism partly owes its intellectual currency to the work of Edward Said (1978) and his critique of ‘Orientalism’, by which he meant the Western (especially of ‘scientific’, classical, and anthropological scholarship) treatment of non-European, particularly Middle Eastern culture. Anthropology, the science of imperialism, privileged the non-Aboriginal expert voice over that of its subjects and consequently perpetuated colonial power relations via exploitive ethno-centric civilising missions. Only through the scientific and Western ‘gaze’ of the experts could customs and traditions be fathomed by the legal discourses of the state. Indigenous self-governance was vulgarised and de-legitimated by reference to oriental and exotic forms of despotism.

Orientalism, the product of these academic and scientific discourses, objectified the indigenous and represented an essentialism or reduction of ‘exotic’ cultures. By

defining the ‘Other’ in particular pejorative ways, the colonial power not only defined itself (Bracken 1997) but also justified its exploitation in moral terms and ultimately corrupted colonial authority (Fanon 1989). Orientalism served to mask colonialism’s destruction of the indigenous economy and provided ideological service to empire and their agents (and settlers) by conflating racial difference with degenerative culture or primitive or debased civilisation. Orientalism therefore materialised in a severe genocidal form in frontier colonial Australia when crude Social Darwinism was also enlisted to justify the extinction of the ‘blacks’. It privileged the ‘civilised’ colonist over that of the ‘uncivilised’ ‘black’. Mason (1909: 58) typified the unsentimental colonist who could recommend the emasculation of ‘all initiated native offenders and indenture them to settlers and others … castration has a wonderfully soothing and beneficial effect on all creatures with wild vicious blood – [it] is like lancing a boil or tumor’. The hegemony thus established in turn became the indigenous view of themselves, thus reproducing what post-colonial discourse calls a ‘subaltern’ culture that required little military or civil investment to maintain subordination. Aboriginalism is therefore Australia’s particular form of Orientalism, in which racism is institutionalised in a discourse that became incorporated into the Aborigines’ view of themselves, at the same time mystifying and obscuring the illegitimate nature of ‘might as right’.

Orientalism in this simplified version would predict a placid and obedient Indigenous population, if one gravely impoverished, anomic, and self-destructive. However, Aboriginalism was seldom an intellectually sophisticated ‘ideological’ device of colonial and neo-colonial rule in Australia and rarely achieved complete hegemony. The influence of anthropology – the assumed exemplary science of imperialism – was relatively weak in Australia and no handmaiden of the neo-colonial state. Like the humanitarian native protectionism and anti-slavery movements of the late colonial and early neo-colonial periods, anthropology was a restraining influence on policies that were often justified in the name of Social Darwinism and notions of degeneration (Reynolds 1998). It is through a critique of Aboriginalism’s useful but limited perspective that the criminological implications become evident in the shape of critical conflict theory and the recovery of the significance of social structure (Vold et al. 1998: chs 15, 18; Woodiwiss 2001).

Aboriginalism and cultures of resistance Rowse (1993) and Trigger (1992) have argued that the generality of the concept of Aboriginalism renders it analytically blunt and it has become ‘little more than an ethical and political gesture of support for indigenous self-representation’ (Rowse 1993: 131). This one-dimensional aspect of Aboriginalism has led to an over-emphasis on the role of racist ideologies in Aboriginal criminalisation. The notion signally fails to account adequately for differential risks of criminalisation among Aborigines.

Trigger (1992), for example, provides a detailed ethnographic account of life among the Aborigines of Doomadgee Reserve in the southern Gulf of Carpenteria, northern Australia. In this situation, aspects of institutionalisation (see below) are evident, but the policy context at the time of his fieldwork was not assimilation but self-determination and institutional control, operating on a much more fragile basis. During ‘Wild Time’,13 colonial domination operated through naked power and seldom sought the consent of the Aborigines through specific ideological or cultural means until the contemporary period. Although Aboriginalism reinforced social distance, Trigger found an absence of hegemony and no evidence of ‘attempts by Whites to convince Aborigines of the appropriateness of colonial control’. Varying degrees of successful resistance were practised within a broadly conceived accommodation with white economic and political power; they were usually demonstrated by the ‘tactical management of social distance’, which denied results and legitimacy to the ‘White’ administration (Trigger 1992: 220). Trigger also notes that another source of potential hegemony, White religion, did not

have the predicted impact. Christianity’s impact was diverse, in some cases being used to oppose and condemn colonialism, in others provoking a revival of traditional religious belief and becoming absorbed into customary life in syncretic forms.

Like Beckett’s description of the ‘oppositional character’ of Torres Strait Islanders to colonial authority despite a whole-hearted embrace of white materialism and religion, Trigger found that the ‘lived dominance’ of Aborigines at Doomadgee produced a sense of identity which was part of a ‘culture of resistance’, a partial response to the ‘rigid administrative control which, increasingly, provides little opportunity for aboriginal manoeuvre’ (Berndt 1977: x). Such a culture had all the hallmarks of the defences of the weak (Matheison 1965). Resistance was usually passive, with ritualised complaining, staff–inmate relations personalised and moralised, compliance feigned, and cooperation priced by exchange. For Trigger (1992: 222), this ‘culture of resistance’ was clearly demonstrated by the rejection of White ways:

Thus in refusing to live in their domestic domain in the way the Whites do, and by excluding Whites from participation in that domain, Aborigines have dulled the full impact of colonial forces which would otherwise become all encompassing and result in the homogenisation of Aboriginal people into Australian society.

In certain circumstances this ‘culture of resistance’ realised crime as a form of

resistance or proto-revolution. Thus the ‘criminal’ behaviour of some Aborigines, while not organised and disciplined in the conventional manner of a ‘revolutionary’ or millennial movement, spontaneously had all the requisite ingredients of political struggle. Anger was not directed randomly but at the state and the symbols of authority for a limited political purpose. Undoubtedly, some Aboriginal crimes have elements of rebellion and protest. This is most obvious in the occasional melee or ‘riot’ in country towns (or the inner city), mostly directed at police and publicans. This open conflict frightens the property classes of provincial centres and accounts for periodic agitation for more ‘law and order’ and control of the ‘Aboriginal problem’ – as it has since the beginning of settlement.

The accounts of Trigger and Beckett are also reminiscent of subculture theories of crime, in particular Cohen’s (1955) and Millers’ (1958) classic accounts of lower working-class male juvenile gangs and their oppositional, hedonistic, and autonomous ‘subcultures’. Deviant subculture arose as a functional form of coping with failure and rejection of the ‘many are called, few are chosen’ opportunity structures of the modern market economy. Indigenous ‘cultures of resistance’, however, expand such interpretations of lower-class crime to incorporate crime as one of many forms of resistance in the service of the preservation of identity, especially Aboriginal masculine identity.

A number of writers (Tonkinson 1977; Beckett 1987; Hyam 1990; Reynolds 1990; Trigger 1992; Thomas 1994; Bracken 1997) have acknowledged that (specific to different times and places) the process of Aboriginalism was never merely top-down since the cultural exchanges involved (albeit unequal) accommodations by both the colonists and the indigenous. While this accommodation varied from a masculine appropriation of warrior virtues (such as those of the Native American, Zulu, and Maori nations) in the imperial boy-scout movement14 to sexual fraternisation, intermarriage, and dependence on servants, it profoundly affected the coloniser’s relationships with the indigenous.15 Socio-legal relations were ambiguous and despite efforts by the neo-colonial states to end rights established by imperial law and exercise control through poor relief, a lengthy, troubled uncertainty prevailed which culminated in the partial restoration of indigenous property in the High Court decisions in Mabo and Wik. The political processes that led to this important (judicial) rapprochement followed the change from paternalistic to self-determination policies bedded in internationalism and gave rise to a new and more complex form of Indigenous control.

Welfare colonialism Confronted with the legacy of Aboriginalism and the failure of assimilation, late-modern postcolonial liberal-welfare governments required new institutionalised forms of post-colonial management. Since at least the early 1950s, national governments were uneasy about Australia’s internal and external racist policies in the context of international interest in decolonisation and human rights. But they had little influence on state policies because of the reserve powers of the Federal Constitution. The decisive 1967 national referendum on Indigenous citizenship and the formal assertion of Commonwealth supremacy in the governance of Indigenous relations began the process of decolonising State Government practices, with important consequences for poor relief and criminalisation. The ideological utility of Aboriginalism was already in full retreat in the wake of global decolonisation and the impact of civil and human rights movements. Consequently the ancien régime of protectionism and assimilation was dismantled and Australia began the process of reinventing national identity. In the 1960s and 1970s assimilationist policies gave way to policies of self-determination and new administrative practices to manage this new and more truly post-colonial environment. But for Beckett (1987: 16), ‘the outcome of the drive to transform indigenous people into citizens has, by an irony, been the rehabilitation of the old colonial structures. Indigenous status takes on a new ideological significance and the old administrative apparatus is re-tooled for new tasks’. Instead of the paternalism of the reserve, mission, and station with their analogous position to ‘total institutions’, Indigenous relations were to be governed by the rubric of self-determination but in the context of self-perpetuating native administrations.

The administrative and ideological arrangements for regulating Indigenous life in the postassimilationist era are captured by the concept of ‘welfare colonialism’ used by Beckett (1987) to describe governmental relations with the Torres Strait Islanders. Its essential character is evocatively described in the northwest ‘Top End’ vernacular as ‘sit down money’.

The ideological constraints under which colonialism now has to work oblige it to seek the consent of its clients, giving rise to the need for representation and a new kind of politics. Welfare colonialism, then, is the state’s attempt to manage the political problem posed by the presence of a depressed and disenfranchised indigenous population in an affluent, liberal democratic society. At the practical level it meets the problem by economic expenditure well in excess of what the minority produces. At the ideological level the ‘native’, who once stood in opposition to the ‘settler’ and outside the pale of society, undergoes an apotheosis to emerge as its original citizen. (Beckett 1987: 17) As Beckett (1987: 16) observes, this new form is ‘continuous with classic colonialism’ but ‘it is solicitous rather than exploitive, and liberal rather than repressive’. Ultimately decisions are made by the colonisers and ‘it is one of the paradoxes of welfare colonialism that, while it increases economic dependence, it also fosters political autonomy’ (Beckett 1987: 175). Both groups are in a double bind since Indigenous economies are weak and cannot readily assert financial independence, while the colonialists are morally wrong if they are perceived to have made the decisions. The policy of self-determination helped achieve formal rights in the courts but before welfare, housing, health, and education could be brought to trouble spots. Nevertheless these reforms could not generate employment or bring industry to remote Aboriginal communities or those without natural resources. Although Aborigines had become more closely integrated with the post-colonial society, the dominant mode of integration was governmental not economic, and the state remained pre-eminent (Beckett 1987: 175). The consequence for crime policy was a scramble to reinvent ‘native’ policing as community policing, and often awkward attempts to accommodate cultural differences. Welfare colonialism was ultimately dependent on the policing institutions for support, but its consensual emphasis complicated surveillance and undermined the public-order role of police in Indigenous communities.

Under the rubric of ‘self-determination’, greater involvement of Aboriginal people in their ‘own’ policing and criminal justice was encouraged. It was argued that self-help strategies (Aboriginal courts and community interventions) and Indigenous policing would reintroduce strong civil mechanisms of social control (by definition more appropriate and legitimate), which would ultimately reduce crime and the over-use of imprisonment. Because ‘the relationship between law and self-help is inverse, it follows that [the] larger and more intrusive a police force is, the weaker self-help will be, a pattern that in the long term exacerbates the problem of crime’ (Black 1980: 195). Tactical withdrawal of State police was encouraged because over-policing of Aboriginal communities contributed to the demise of effective customary regulation and the failure of self-regulation inevitably intensified State intervention. Ironically, such policies have led to confusion and in many places acute under-policing, with equally negative effects.

Venbrux’s (1995) ethnographic account of the immense cultural miscommunication arising in a typical homicide investigation among the Tiwi Islanders has shown that in this case such gestures towards self-determination do not address the profound disjunction between Tiwi mortuary rituals and Anglo-Australian law. The investigation ignored Aboriginal knowledge about the event and remained unsolved by white law but distorted and reinforced distinct local practices of dispute resolution despite the pre-eminence of the State. Australian law, applying the ‘test of repugnancy’, has not been capable of accommodating self-help even where it is viable or flexible enough to bridge the differences in legal culture.

The indifferent performance of assimilationist policies was also a product of the institutionalisation of Aboriginalism which, like labelling theory, provided an all-pervading ‘master status’ for Aborigines as evolutionary children. This stigmatisation paradoxically reinforced and preserved Indigenous identity. The collision of new sensibilities about human rights, decolonisation, and self-determination created a new national identity that reimagined and incorporated Indigenous people into a new form of nationalism. This new nationalism transformed the ‘primitive native’ to ‘first Australian’ and appropriated their icons for global marketing, but it also required changes in the conceptualisation of Aboriginal deviance. Institutionalisation Labelling theory in the form of Goffman’s ideas about total institutions had been explicitly employed by some anthropologists (Rowley 1970, 1978; Haebich 1988) to describe the nature of institutions of the reserve and mission. The Aboriginal reserve and its religious equivalent the mission station were primarily a (multi-purpose) imperial measure for preventing lethal contact (genocide) between settlers and Aborigines during ‘wild time’. The reserve and mission evolved into a means for disrupting Indigenous cultural reproduction and thereby accelerating the assimilation of Aborigines into mainstream white Australia (Berndt 1977). The reserve was a widely used method of pacification and regulation of ‘troublesome’ natives, which in some States continued well into the 1960s. Moreover, reserves and missions were frequently regulated, in a pattern typical of imperial policing, by ‘foreign’ natives – a practice that was perpetuated by the neo-colonial Australian States. Reserves, native schools, and missions were also ‘whitening’ agents whose function was supported by the children’s home (the destination for thousands of Aboriginal mixed-blood children ‘stolen’ by State welfare agencies16) and penal institutions that housed a considerable proportion of the Aboriginal population.

Anna Haebich (1988) described the nature of the WA Government Native Settlement at Moore River in the years before World War II and evoked institutionalisation as the predominant form of control deployed by the state. Moore River Settlement, the archetypal government camp, originally designed as an Aboriginal rural Arcadia and training centre, had by the 1920s evolved into what Haebich (1988: 199) calls ‘a rigid multi-purpose “total institution”:

Like inmates of other total institutions, the Aborigines lived physically isolated from the rest of the world and any communication with the outside world was strictly limited. Controlled by a small but powerful white staff they worked, played and slept within the confines of the settlement reserve and were born and died there. The young people sent out to employment were poorly trained and accustomed to an institutionalized way of life and the prejudices of white society often caused them to lead lonely and unhappy lives. Many returned to Moore River to establish their families, thereby creating an enduring institutionalized community. (Haebich 1988: 2000) Haebich (1988: 203) also notes that formal rules for governing staff relations

were based on those from psychiatric hospitals and prisons that expressly limited communication with the ‘inmates’ and the outside world. Relations were stereotyped and antagonistic, designed to ‘maintain social distance’. Haebich concluded her history of prewar native administration by finding that despite pervasive pauperism, the dispossessed Aborigines of the Southwest had survived with a unique identity that drew on their customary traditions and shared experiences as inmates. ‘It is ironic that the official policy of enforced assimilation through the “native settlement scheme” and the efforts of the white community to sweep the Aboriginal “problem” under the carpet by isolating Aborigines on town reserves should have played an important role in forging this identity’ (Haebich 1988: 356).

Perhaps because Aboriginal life was characterised as analogous to that of prisoners or asylum inmates, few conclusions were drawn about the crimogenic potential of these institutions. Critics of state intervention largely ignored the role of assimilationist ‘total institutions’ in the acculturation of criminal or deviant lifestyles to engender learned helplessness, mortifications of self, and other stigmatisation. In criticising the appropriation of Goffman’s total institution to explain by analogy aspects of neo-colonial modes of institutionalised social control, however, Rowse (1993) revives its relevance in regard to the production of crime. He relies on extending the idea to a wider range of institutions that include the prison itself, the orphanage, the foster family, and the juvenile detention centre to talk about ‘lives in custody’. He explicitly makes the connection between institutionalisation (if not actually ‘total’ in Goffman’s sense) and the undermining of internalised social and cultural control, particularly in the cross-generation transmission of customary practices of parental supervision.

Brady (1992) suggested that Aborigines who escaped institutionalisation (in government and mission stations) by working in the pastoral industry successfully avoided cultural disorganisation and preserved parental authority more effectively in the generations that followed. Thus institutionalisation becomes the express cause of the breakdown in socialisation practices, especially in parental control, which occurred among the formerly institutionalised. This lost moral transmission was worsened by the absence of external restraints (white ‘warders’ and their ‘subaltern’ native police) with the advent of welfare colonialism. This engine accelerated criminalisation and contributed to the regional and rural/urban differences in indigenous incarceration. Rowse also reviews Gale and colleagues’ (1990) findings and concurrs that unorthodox Aboriginal juvenile lifestyles and family relations helped to produce vulnerability to arrest and incarceration because welfare perceived these lifestyles to be ‘at risk’. Thus institutionalism in this interpretation is more akin to control theory (Hirschi 1969), with the emphasis on family dysfunction and the weakening of social bonds as the root causes of crime.

Institutionalised forms of poor relief and native administration ended when paternalistic and assimilationist policies were discredited and replaced by explicitly juridical forms of control, notably imprisonment. Thus the rapid rise of Aboriginal penal incarceration from the 1960s came about because of the transfer of social control from the institutionalised reserve and mission to a purely penal form. Aboriginal lifetime risks of arrest now approach one in three, and one in four males are estimated to have been

imprisoned (Harding et al. 1995). Hence penal institutions alone account for a considerable impact on Aboriginal lifestyles.17 Characterising Aboriginal lifestyles as custodial therefore had a reality well beyond any metaphorical or polemical purpose.

The timing of the transfer from native ‘protectionism’ to penal modes of control is crucial for empirical support for this theorised development. Aboriginal imprisonment in the 1950s was relatively low at about 12% of daily average prison musters, but it rapidly expanded so that by the mid-1970s Aborigines accounted for about 50% of the prison population in Western Australia. This rapid increase coincided with the restructuring of the pastoral industry in the 1960s, economic expansion, and renewed competition over land use in the hitherto remote and ‘unsettled’ parts of Northwest Australia (Broadhurst 1987; for earlier data at neo-state formation see Finnane 1991). Aboriginal employment in rural areas declined dramatically from the mid-1960s because of the introduction of equal pay for stockmen in the pastoral industry and other Aboriginal-dominated rural work. In the consequent drift to urban centres, where government relief could be more readily obtained, the risk of criminalisation increased (see also Rowse 1998). According to social disorganisation theories (especially social bond and variants of strain theory), family separation and the consequent interruption to parental socialisation would predict higher involvement in crime and conflict with authority.

Table 12.2, drawn from figures from the National Aboriginal and Torres Strait Islander Survey (NATSIS), provides a measure of the impact of institutionalisation during the assimilationist era and later contacts with the police.18 The table addresses the question of whether such practices elevated the risk of criminalisation for Indigenous children who were forcibly removed or taken under duress from their parents. It shows that overall, 32.5% of those who were separated also reported an arrest, while only 19.2% of those who avoided separation from their families reported an arrest. In the Northern Territory, the proportion separated from their families was below average and the only instance where not being institutionalised produced a higher risk of police contacts. The data sheds light on the variations in imprisonment illustrated in Table 12.1.

TABLE 12.2 ‘Lost’ generations and risk of arrest: NATSIS estimates of Aboriginal population ‘taken away’ from family by percentage arrested Number of Aborigines % arrested and % arrested and not % Aborigines institutionalised institutionalised institutionalised institutionalised

NSW 3 400 30.5 21.8 6.8 VIC 1 100 38.3 30.3 9.2 QLD 3 700 32.6 13.5 7.2 SA 1 700 43.8 26.0 14.4 WA 3 900 33.2 24.1 13.0 TAS 100 – 12.3 1.5 NT 1 600 17.3 19.6 5.2 AUST 15 800 32.5 19.2 8.1 Source: NATSIS additional tables provided in 1996 by ABS Darwin: personal communication. Estimates are based on number of Aboriginal persons over age 13 who reported as children they were removed by State native or welfare authorities from their natural families. Note: unknown cases are excluded from the calculation and there were for Tasmania insufficient cases for reliable estimation of Aborigines arrested and institutionalised. Some of the differences in Table 12.2 may be due to the different times the States repealed powers in respect of Aboriginal guardianship and protection. Some States abandoned these practices in the 1940s and 1950s, but generally overt assimilationist practices ceased everywhere by the mid-1970s. Some children were fostered, others were placed in specific-purpose children’s homes or omnibus institutions, but NATSIS

provides only the most basic fact – that of separation from the natural family. The comparison is also an imprecise measure because the survey relies on self-definition of separation and does not take account of the duration, nature, or severity of the separation experienced. Some children were removed at very young ages, others in their teenage years. It is also not clear from the ‘taken away’ question if this also captures all forms of juvenile detention. Adoption, child welfare programs, and children’s institutions gradually came under Aboriginal management by the early 1980s. Thus Aboriginal communities in different States experienced assimilationist policies in varying intensity, but forced separation was a more virulent practice in the longer-settled southern States and more ruthlessly adopted in respect of mixed-race children.

Variations in the intensity of institutionalisation, the role of resistance cultures, the levels of socio-economic capital, and the relative effectiveness of welfare colonialist modes of control among the several Australian jurisdictions also help to account for the variations in imprisonment found between Aborigines in Table 12.1. These differences are now explored in the following section by testing the cogency of social deprivation and conflict theories. Culture-conflict and deprivation theories of Aboriginal crime and punishment The ‘underlying issues’ of unemployment, poverty, ill-health, dispossession, and disenfranchisement were seen by the RCIADIC as the causes of the over-involvement of Aborigines in the criminal justice system. The ‘disproportionate criminalization’ experienced by Aborigines was attributed to a ‘self-perpetuating spiral of criminalization and victimization … linked to the marginal status and alienated character of the Aboriginal people within Australian society’ (Amnesty International 1993: 15–16). Thus the dominant account of the cause of Aboriginal over-representation is low socio-economic capital (deprivation) coupled with a recognition of historical marginalisation (anomie) realised as exclusion and race bias. By using indices derivedfrom NATSIS to measure differences in the socio-economic ‘stress’ and cultural status of Aborigines and the scale of punishment, the explanatory power of orthodox strain or deprivation theories were tested against rival conflict theories which draw on persistent differences between the dominant Anglo-Australian and Aboriginal cultures.

A ‘cultural strength’ index was based on data collected on the proportion of Aborigines who identified with a geographical area or ‘homeland’; related to a clan or skin group; spoke an Aboriginal language; saw elders as important; voted in Aboriginal and Torres Strait Islander council elections; and participated in various cultural activities and ceremonies. Similarly, a socio-economic ‘stress’ index was created. This was based on the proportion of single-parent families; the amount of long-term employment; the extent of unsatisfactory housing and service access; the proportion on low incomes (less than $12 000 per annum); the extent that alcohol was considered the main health problem; and post-school qualifications rates. In addition, for each jurisdiction a crime or ‘punitiveness’ index was created.

The analysis of the NATSIS and punitiveness indices in Table 12.3 show that jurisdictions with high Aboriginal socio-economic deficits are also those with strong Aboriginal cultures and theoretically the highest levels of punitiveness as measured by imprisonment and arrest rates. Considering the average score for Australia, three jurisdictions (NT, WA, SA) are classed as having both high cultural strength and stress, two (Vic., Tas.) have low cultural strength and stress, and Queensland had high cultural strength and low stress. No jurisdiction was found with a high stress and low cultural strength pattern, but New South Wales borders on this classification and because of its low land and language retention value (crucial components of cultural strength) was regarded as best fitting this configuration.

Theoretically, ‘cultural strength’ or cultural identity indicates the degree of resistance and potential conflict with the dominant society, while socio-economic ‘stress’ is an indicator of relative deprivation. Thus a high ‘cultural strength’ ranking associated

with culture-conflict should be related to a higher punitiveness ranking, and similarly a high stress ranking would simulate deprivation or strain and should be associated with a high punitiveness ranking. Consequently those jurisdictions with high ‘cultural strength’ and socio-economic stress rankings would also be those most likely to have a high punitiveness ranking. A series of rank order correlation tests conducted on the three indices generally showed this to be the case. Thus the Northern Territory and Western Australia have the highest ‘strength’ and ‘stress’ scores and the highest overall punitiveness ranking, while Tasmania and Victoria with low ‘strength’ and low ‘stress’ rankings were found with the lowest punitiveness ranking. Variations in punitiveness were correlated with relative differences in Aboriginal identity, land occupation, and socio-economic conditions. Generally, States with larger and more independent Indigenous populations (higher land and language retention), and low levels of socio-economic capital (NT, SA, WA) have higher rates of incarceration than those with smaller populations, little language retention, few landholdings and higher socio-economic standing (Tas., Vic.).

A number of substitutions and alternative combinations of items were explored in the rank order comparisons (either using Spearman or Kendall-Tau rank order correlation tests) of the three major indices. Although some variations were observed depending on the combination of punitiveness, stress, and culture indicators employed, these did not alter the general relative order of jurisdictions. These analyses support the proposition that cultural strength and socio-economic stress are associated with higher punitiveness. The high correlation between cultural strength and ‘stress’ was such that either index could be regarded as interchangeable and arguably could support a conflict-stress model of Aboriginal criminalisation.

TABLE 12.3 Rankings of ‘culture’, ‘stress’, and ‘punitiveness’ by jurisdiction

Cultural strength index

Socio-economic stress index

Police arrest NATSI survey

Police custody1

Prison census2

Punitive index3

average rank average rank % pop rank rate rank rate rank rank NT 589 1 321 1 19.6 5 1001 1 290 1 3 WA 468 2 316 2 25.4 2 310 2 126 2 1 SA 450 3 295 3 28.5 1 226 3 87 4 2 QLD 436 4 264 5 14.9 6 205 4 73 5 6 NSW 379 5 290 4 22.5 4 96 5 101 3 4 VIC 364 6 253 6 22.6 3 80 7 54 6 5 TAS 263 7 211 7 12.6 7 86 6 52 7 7 AUST 367 284 20.4 152 86 Notes: 1 Police Custody Survey, August 1992.

2 National Prison Census, March 1994: all rates per 100 000 population. 3 Combined index comprises overall and Aboriginal rates for the 1992 Police Custody Survey and 1994 National Prison Census plus the percentage of the Aboriginal population reporting arrest in 1994 NATSI survey. Source: Broadhurst 1997: Tables 22, 23. Moreover, land retention was found to correlate with all measures of punitiveness and was a parsimonious proxy for the cultural strength index consistent with Aboriginal notions of ‘country’ and identity (for details see Broadhurst 1997).

An exception appears to be the case of the Northern Territory, which has the highest cultural strength and socio-economic stress rank but was only modestly correlated with overall punitiveness. As noted earlier, it has a below-average Aboriginal incarceration rate and a relatively small differential risk of imprisonment (partly because of the high rate of non-Aboriginal imprisonment). Nevertheless, the Territory has the highest rank when overall police and prison custody rates are correlated, and a moderately high punitiveness index ranking. Of all the States, the Aboriginal domain is the most extensive in the Northern Territory. Aborigines comprise 26.5% of the Territory population (proportionately about ten times larger than the next most populated States of WA and Qld) and retain language and country at a substantially higher level than other States. Remoteness, a later distinctive colonial history, and a relatively intact Indigenous identity may provide immunity from excessive criminalisation. This hypothesis is strengthened by the fact that culturally strong States like the Northern Territory, Queensland, and to a lesser extent Western Australia have lower assault victimisation rates, suggesting that Aboriginal intra-group crime, especially violence, was less severe. Tasmania, on the other hand, complies with expectations by having both the lowest ‘culture’ and ‘stress’ ranking and the lowest ranking on all measures of punitiveness. Moreover, Western Australia and South Australia have very high cultural strength and stress indices (tied or adjacent rankings and similar values) and also have the highest arrest rankings and very high overall punitiveness ranking. Institutionalisation had a relatively weak impact on the Northern Territory Indigenous population and did not appear to elevate risks of criminalisation, but in South Australia especially, Western Australia, and to a lesser extent Victoria, institutionalisation was more intense and had a greater impact on risks of arrest (see Table 12.2). These subtle differences in interstate institutionalisation may account for Victoria’s higher rate of Aboriginal incarceration than Tasmania and higher differential risks (with the non-Indigenous population) than the Northern Territory. Frontiers and modernity Drawing on the work of Erikson (1966), I have argued that the high level of punitiveness in States such as Western Australia and the Northern Territory was associated with a ‘frontier’ culture, that is, a settler society that sees itself as vulnerable and threatened by

‘outsiders’, of whom Aborigines – the ‘exotic other’ sustained by Aboriginalism – represent a traditional and recurring example. Indeed a literal frontier was also implied because vast areas remain ‘wilderness’ in which settlers as well as the surviving Indigenous people contest the social, economic, and moral domains, especially at the geographic and cross-cultural borders. In such a society, the frontier metaphor19 justifies a more punitive response to crime and deviance since social order and solidarity is conditional and is constantly redefined to meet evolving or ambivalent circumstances. In this way cultural boundaries or borders are exemplified by definitions of deviance, and in Australia’s ‘frontier’ States Aboriginal culture provides an inexhaustible source of deviant possibilities (Broadhurst 1997). For example, Aborigines, especially Aboriginal youth, when portrayed in the popular mass media, are most likely reported as offenders, which perpetuates the reductionism found in latent Aboriginalism (Langton 1993; Sercombe 1997; Fletcher 1999). In contrast to the dominant materialist, politically cohesive, and largely Protestant Anglo-Australian culture, the Aboriginal domain is characterised by the preservation of cultural practices, intense reciprocal relations, supreme individual sovereignty, and ‘the relatively unfettered consumption of time’ (Rowse 1992: 22–35). The idea of a ‘frontier’ is used here in the sense of a cross-border (a folding space in the parlance of the post-modernists): a place of moral ambiguity, contingent possibilities, and social uncertainty rather than as a reductionist/essentialist description of complex historical and ongoing events.

The frontier is contiguous with strong cultural identity. The Northern Territory and Western Australia best illustrate frontier jurisdictions because their Aboriginal populations retain land or ‘country’, maintain identity, and endure high levels of socio-economic stress associated with punitiveness. Victoria and Tasmania are the least frontier-like and share weak culture and low levels of stress and punitiveness. South Australia, Queensland, and New South Wales tend to fall in between, being strong on some characteristics but weak on others. Tasmania and Victoria have below-average Aboriginal populations, negligible proportions retaining languages, little or no Aboriginal country, and relatively low Aboriginal participation in imprisonment. New South Wales, however, has a high stress factor and weak culture (very low land and language retention when compared to NT, WA and SA) and moderate levels of punitiveness and best approximates a high stress–low culture or mixed frontier-settled region. South Australia has a below-average Aboriginal population, but higher language retention and significant Aboriginal country, whereas Queensland has an above-average Aboriginal population but below-average language retention and a small area of Aboriginal country. Both have Aboriginal participation in imprisonment that fall in between the extremes, but South Australia’s stronger culture (especially ‘country’), high stress, and punitiveness value conform to a frontier region. Queensland’s high culture but low stress configuration justifies its mixed status as a frontier settlement. These categorisations are summarised below by incorporating the dimension of Aboriginal country (high land and language retention) and frontier into the conflict-stress model.

The characterisation of some States as frontier or otherwise is a generalisation, justified here for the sake of simplicity and clarity. Differences in frontier status based solely on comparing statistical measures for entire jurisdictions obscures differences within those jurisdictions. Aboriginal populations, especially ‘enclaves’, are distributed more often in the north and interior of Australia. (Enclaves are defined in the sense that the Aboriginal domain is the dominant cultural formation in a particular geographical area or locality.)

Deprivation/conflict Punitiveness Aboriginal country Society State high stress and culture high substantial frontier WA, NT, SA high stress, low culture moderate negligible mixed NSW high culture, low stress moderate significant mixed QLD low culture and stress low negligible settled VIC, TAS Hence the northern and western boundaries of New South Wales and Queensland display characteristics identical to those found in the Northern Territory, as do the north and northwest of South Australia and north and east of Western Australia. Frontier-like conditions can prevail within States characterised as most settled. Mackay (1996), for example, has shown that some rural districts of Victoria (the Mallee, West Gippsland) have arrest rates two to three times greater than the State as a whole and approach that found in frontier States. Levels of criminalisation similar to Western Australia and the Northern Territory are found in the rural west of New South Wales (Luke and Cunneen 1995; Morris 1997). Urban centres also contain Aboriginal enclaves and complicate the spatial simplicity of the frontier model. Thus the ‘frontier’ has an urban as well as a remote rural dimension, as Anderson (1993) has documented for the inner-Sydney Aboriginal enclave of Redfern, which has experienced levels of criminalisation equivalent to the rural frontier. Although broad demographic features make Western Australia and the Northern Territory ‘frontier’, the spatial dimension is not merely a metaphor. The ‘frontier’ is land or ‘country’ occupied by the Indigenous domain and not the postmodern fragmentation of (collective and self) identities associated with a decline in traditional social economies that is the distinguishing feature of the frontier in Australia.

In the above proposition, the frontier determines a more general punitive response and is also a metaphor for conflict arising from cultural and socio-economic differences for spatially differentiated groups in post-colonial society. Such conflicts are ultimately resolved by the powerful by criminalising the less powerful and are legitimated by legalism and acts of ‘primitive’ rebellion by the less powerful. This process ensures that colonisation remains obscured by the ceremonial mystifications of Anglo-Australian legal culture (Morris 1997). Even in the most settled and urbanised places, cultural, economic, and spatial frontiers or boundaries of identity exist. But it is in those places where these differences coalesce literally and metaphorically (crossborders) that the challenge to the state monopoly over moral and legal authority is greatest. This tension provokes or activates state intervention, especially by the policing institutions. In the post-assimilationist era, however, welfare colonialism and class (and employment status) moderate and fragment the process of criminalisation in the regulation of culture-conflict.

The centrality of Aboriginal ‘country’ and all that it represents in social-cultural capital is the salient determinant of the differential risks of criminalisation among Aborigines. In the Aboriginal imagination, ‘country’ is both a symbolic and a cultural space, and boundaries are never merely geographical or jurisdictional. Where (and when) Aboriginal country has been ‘lost’, Indigenous criminalisation may be more individual and symptomatic of pathology. Where country is contested, criminalisation may be more systematic, conflictual, and intensive, and where country is uncontested, sanctuary from criminalisation (but not crime) occurs. These different forms of country are imperfectly realised (never completely lost or uncontested) and subject to a temporal and spatial dynamic that varies the intensity of Aboriginal crime and criminalisation. Thus the frontier conflict-stress model may not fully account for the exceptions noted for the Northern Territory and Victoria or the ambiguous ‘punitiveness’ observed in mixed-status jurisdictions.

It is this ‘anomalous’ aspect of the geography of Aboriginal crime that Tyler (1998, 1999) addresses by incorporating the frontier into postmodernist notions of place and identity. He suggests that the dramatic ethnic migration or ‘switching’ observed in the inter-census (1986–96) increase in the Aboriginal population, especially in the least frontier-like States, accounts for the imprecision of the conflict-stress model predicated on stable ethnic identities. The increases in Aboriginal identification appear to be a function of intermarriage and cultural renaissance but are also a by-product of the (subsidised) forms of indigenous governance in modern settler societies. In the settled state, Aboriginal identity is dispersed (as social class) but in the frontier identity it is segmented (by race or group), suggesting that this dimension oriented the nature and intensity of criminalisation. In the mixed culture-stress environment, pluralisation of identities prevails in high culture–low stress environments, while fragmentation of Aboriginality occurs in weak culture–high stress places and account for variation in criminalisation (Tyler 1999). Shifts in identity and cultural boundaries are also a response to the ambiguities of welfare colonialism and influence the local forms of poor relief and policing. In the sphere of Indigenous policing, inherent tensions are polemically reduced to a calibration of police racism and the choice between separation or autonomy and co-option or incorporation. Policing institutions have adapted by attempting to change the policing culture and by both specialising and generalising their response to Aboriginal victimisation and crime. However, regardless of how police adapt to these new complexities in surveillance, the forms of criminalisation have become more negotiable, more differentiated, and more conditioned by the degree of defiance rather than by racial status.

Differential criminalisation occurs because of the tensions within welfare colonialism and the ambivalence towards difference or deviance arising from the tensions (local/global) of post-colonialism and late modernism (Lippens 1998; Tyler 1998). Shifts in ethnic identity or blurred identities, along with rural and urban variations in crime, suggest a structural explanation for the differential risks of Aboriginal criminalisation (see Carcach 2000, 2000a). Differences observed between rural/frontier (pre-modern) and urban/plural (modern) are accounted for by the anomalies of late modernism or, more precisely, advanced capitalism (Woodiwiss 2001).

Modernisation in the form of the ‘civilising’ capitalist state predicts higher levels of violent crime but lower levels of property crime for the frontier than for settled areas because the effectiveness (rational radius) of the state is imperfect at the cross-border. Frontier states do indeed have higher rates of violent crime and lower rates of property crime than the settled states, and like the disorganised inner city exhibit high levels of public disorder. Frontier society may be more akin to the pre-modern or modernising state, which shows more violent crime (conflicts) than property crime (deprivations), and it may regulate difference by resort to policing public order. In the modernising state, crime in rural (frontier) areas will be greater than in urban (settled) areas, but in the late modern state urban areas also experience high levels of crime so that simple rural/urban differences are modified (see Johnson and Monkkonen 1996; Hogg and Carrington 1998). Rural areas and ‘frontier’ are contiguous but also have a dimension in settled states and urban areas. If the place contains an Aboriginal domain, ambivalence about differences and what constitutes deviance are amplified. Thus in frontier states and those places where the Aboriginal domain is ascendant, the nature of criminalisation will also reflect the conflictual nature of the cross-border, and both violent crime and public-order offences will dominate.

Aborigines and the new justice In post-colonial Australia the new frontier is defined along the axis of natural resource exploitation and by the contingent forms of identity or ‘country’. The continuing process of colonisation changes the nature of economic relations and governance (from

assimilation to the conditional self-determination of late capitalism), compels social interaction, and provokes contest over land use (‘country’) and definitions of deviance. The revival of Aboriginal ‘country’ via land rights, the renaissance of Aboriginal identity or culture, and the ambiguities or ambivalence of welfare colonialism serve to exaggerate the threat of the ‘moral’ disorder of Aboriginal social life. Rather than decreasing culture-conflict, post-colonialism’s relentless civilising, rationalising, and homogenising impulse has intensified criminalisation of the Aboriginal domain while continuing to mystify the calamitous consequences of colonisation.

It has been argued that variations in imprisonment can be ‘attributed to fundamental differences in the character of a society over long time periods or significant differences in society or government among a cross-section of jurisdictions with divergent rates of imprisonment’ (Zimring and Hawkins 1991: 222). In the case of the post-colonial States of Australia, punishment serves as a sensitive indicator of social-cultural differences and sensibilities about the governance of crime and disorder. Penal variability has been explained by two basic properties of the social reaction to difference: ‘social groups become more punitive and administer sanctions with greater formality as the relational distance between members widens and as the group undergoes stressful change’ (Grabosky 1984: 182). Differential rates of imprisonment for minority or disenfranchised groups reflect not only socio-economic inequalities but also the extent to which social distance, realised as cultural borders defined by difference or deviance, is contested and resolved by the civilising and criminalising state. For Grabosky, the most fundamental change in penal mode occurs in the transition from informal to formal sanctioning (and in late modernity a tendency to revert to informal sanctions). The shift to formal sanctioning mirrors the trajectory of colonisation and helps explain the temporal and spatial variance in penality among Aborigines and between the Australian States. Differences arising from the frontier status of some Australian States illustrate the salience of culture-conflict explanations, but between Aborigines (and other Australians) the punitive response is mediated by the anomalies of welfare colonialism, Aboriginalism, and the uneven legacy of institutionalism. While poverty and class are important, the spatial variants of Aboriginal criminalisation reveal the pervasive relevance of the processes of colonisation in the present.

Given the economy of imprisonment as a means of regulating the disorder represented by the conflicts and strains of Aboriginal (deviant) engagement with advanced capitalism, its deployment has been efficient in managing the stress of race conflict and cross-cultural inequalities. But the extent to which the state can resort to the policing institution as a way of managing the ongoing encounter with Aborigines is now subject to a pervasive (global) discourse on human rights and self-determination for indigenous peoples. Thus policing institutions seek consensual ways of regulating social order in the Aboriginal domain and require new ideologies and orientations to legitimate their practices. In the search for new ways of minimising conflict stress in frontier-like environments, community policing and customary forms of dispute regulation have been reinvented and co-opted in the interests of police managerialism (Erickson and Haggerty 1997). In turn, these customary forms of regulation have inspired restorative justice approaches that have emerged in a wider response to the crisis in the regulation of juvenile and white-collar delinquents (Braithwaite 1989). Ironically, these new remedies draw some of their inspiration from the colonised (e.g. ‘sentencing circles’ from Native Americans and family group conferences from the Maori) but risk neo-imperialist remedies when exported to indigenous Australia (Blagg 1997). This approach relies on harnessing a reimagined social shaming which has special appeal in the control of the young delinquent in late-modern society; pre-modern societies offer ‘pure’ sources of pre-juridical (shaming) forms of regulation. Nevertheless, such restorative approaches offer opportunities for at least the possibility of a negotiated justice, and sentencing circles have been adopted by some Indigenous communities to reinforce programs of diversion away from custody. A two-year trial Circle Sentencing has begun in Nowra,

New South Wales (Aboriginal Justice Advisory Council 2001). See Chapter 14 for further discussion of the development of restorative justice).

Such is the paradox encountered by the governmental response to acute conflicts arising from social (cross-border) differences that the ambivalence between state, community, and individual calls for both diversion and deinstitutionalisation of offenders and more severe punishment. Punishment, preventive detention, and stigmatisation (exclusion) as well as restorative (reintegration) approaches are simultaneously deployed as reformative because populism determines their political and ideological utility (LaPrairie 1999; Roberts et al. in press).

A current example is the apparent confusion generated by so-called ‘three strikes’ and mandatory repeat offender detention laws predicated on vulgarised calibrations of the risk of dangerous recidivism and the promise of prevention. Such laws appeal to popular demands for punishment while (im)perfectly targeting ‘high-risk’ offenders who are more likely, because of high rates of recidivism, to be Aborigines (Broadhurst and Loh 1993). The only two jurisdictions to embrace mandatory detention (discriminatory) measures for habitual offenders were Western Australia and the Northern Territory – until its repeal in 2001 (Flynn 2000; Morgan 2000).20 The latter also evoked shaming to justify ancillary ‘punitive work orders’. Both inevitably targeted Indigenous offenders in response to moral panics over property theft, especially motor vehicles, and both accord with our model of the punitive response in frontier states.

The tendentious moral authority of such measures both provokes resistance and sustains the weak purchase of Anglo-Australian law within the Aboriginal domain. Consequently, in frontier jurisdictions, laws ostensibly designed to restore public security in fact operate to weaken the legitimacy of law in the very places it is thought most necessary. This assumes a general corrective purpose for punitive measures, but as Hogg (2001: 370–71) observed, the perceived fragility of the European presence is such that even petty challenges evoke penalties reminiscent of earlier phases of colonisation. At the same time and often in the same jurisdictions (albeit it in different sectors of the policing apparatus), there has been a proliferation of non-custodial and diversionary community interventions, many justified under the rubric of restorative justice. The most cynical view, LaPrairie (1999: 150) notes, is ‘that the adoption of restorative justice may be little more than a way for governments to accommodate the opposing and often polarised views about criminal justice’ (see Warhaft et al. 1999). Often restorative approaches are presumed a micro-solvent for acute inequalities in profoundly unjust societies fractured by class and race, and the hope is that they change ‘culural sensibilites’ about what justice means (Daly 2000). But if they merely limit the target to lower-risk offenders and offences and don’t change attitudes, the reform, LaPrairie argues, is questionable.

Restorative shaming embedded in a community of reciprocal actors seeks to restore and realise citizenship through an engagement in reintegrative shaming ‘ceremonies’ at a level meaningful to those actors without privileging the state or its agents. Consultative processes attempt to reduce cultural contradictions and are deployed to enlist Aboriginal communities in culturally appropriate applications of that ultimate shaming artefact – punishment. Restorative justice’s dependence on assumed comunitarianism renders it vulnerable to co-option as a re-legitimisation stratagem by the imperious capitalist state. Yet the approach promises to resolve conflicts arising from difference (localising and empowering) as well as responding (reflexively) to the social-order tensions arising from the (diverse) forms of community – contingent ‘countries’ encountered by the post-colonial capitalist society. However, this pluralist and decentred shaming process may not serve to decriminalise the ‘other’ or liberate the colonised if the community is merely an invention of the ambiguities of welfare colonialism and the offender a creature of the pains of socio-economic stress. As Havemann (1999: 474) argues, what is urgently required is a framework for multiple jurisidictions that encompasses the means for self-determination and resolves conflicts at the cross-border. Justice for Indigenous peoples has been limited by the vision of the legal imagination21

and its preoccupation with and privileging of property and human rights over their

political, cultural, and civil rights. An authentic restorative justice begins by addressing all covenant rights by redefining the kinds of sovereignty to be exercised in the frontiers of the Federation of Australia. Notes I owe a lifelong debt to Clare Mann, whose empathy enabled me to grasp the idea of country despite my settler vision. Her spirit, like the swift flight of the desert finch, is among the river gums of the De Grey and Finke, and along the Luritja track past the McDonnell Ranges. I thank Pat Lowe, Jimmy Pike, Bob Tonkinson, David Trigger, John Stanton, and Tracy Pratt for sustaining that vision here on an island in the South China Sea. 1 Differences are extreme if police custody rates (detention in police lock-ups) are used rather than those derived from correctional services (per Table 12.1). Police custody surveys show that non-Aboriginal rates vary between Victoria and the Northern Territory (76 compared to 253 per 100 000) by a ratio of 3.3:1. However, they produced an incredible 29:1 between Aborigines in Tasmania and Western Australia (242 compared to 7001 per 100 000) (see McDonald 1993; Dagger 1995). 2 A distinction is made between crime and criminalisation, the former being crimes defined by laws and the latter offences chosen by the policing institution for suppression, but they inevitably overlap. The terms Aboriginal (including Torres Strait Islanders) and Indigenous people are used interchangeably throughout the chapter. 3 Both Harding (1999) and Williams (2001: Fig. 1) have noted that while Indigenous deaths in police custody have slightly declined they have increased significantly in prisons (see also Carcach et al. 1999). 4 A comparative perspective in respect to Indigenous rights in the Anglo-Commonwealth is pursued in the volume edited by Havemann (1999b). This provides a valuable jurisprudential context for assessment of shared problems arising from colonisation and the implications for Indigenous justice. See also the 1999 special edition of the Australian and New Zealand Journal of Criminology (vol. 32) for specific discussion of criminal justice issues and Indigenous peoples in these three settler states. 5 Indeed, the net may be cast much wider to include the USA and non-British settler societies. The level of Indigenous imprisonment and crime in the USA appears consistent with that found in Canada, Australia, and New Zealand. Nor is Indigenous over-representation restricted to European settler societies – the aborigines of Taiwan are at least six times more likely to be imprisoned than their Hakka or Hokkien counterparts (Shue 1998 and generally Dikotter 1997). 6 It appears that Australian Aborigines may have fared worse than Indigenous peoples in Canada and New Zealand if incarceration rates are indicative. Indigenous:non-Indigenous custody ratios are higher for some Australian States than for New Zealand and the western provinces of Canada (Hazelhurst et al. 1995; LaPrairie 1996; Pratt 1999). 7 The concept of ‘Aboriginalism’ subsumes the topic of tradition, and with it the underlying but misleading question about the extent to which Australian Aborigines retain traditional beliefs and customs and therefore their Aboriginality (see generally Berndt 1977; Stanner 1979). 8 The data presented here draw on the realist (empirical) tradition to test ideas about crime causation and seek to minimise the theoretical limitations of representationalism evident in cultural studies approaches. I have drawn extensively on Anthony Woodiwiss’s (2001) critique of modern social theory, especially postmodernism and his recovery of Foucault the social scientist. 9 Early systematic research revealed gross communications difficulties between Aborigines, police, and the courts, especially those of summary jurisdiction (see Wurm 1963; Eggleston 1970). 10 National homicide data reveals less gross disparities, with 1989–2000 trend data showing Indigenous victimisation rates declining from a high of 13.8 in the early 1990s to stabilise at around 9.0 per 100 000. Non-Indigenous rates have fluctuated between 1.3 and 1.8 per 100 000 over the same period. The data also suggest that the Northern Territory, Western Australia, and to a lesser degree Queensland had the highest levels of Indigenous homicide. Moreover, significant differences are observed in the character of homicide events: Indigenous homicides, for example, are more likely to involve family members, arise from domestic disputes, and involve alcohol than was the case in non-Indigenous homicide events (Mouzos 2001). 11 Farrington et al. (in press), applying multivariate analysis, discuss similar differences between African-American and Caucasian rates of violence. The higher prevalence of violence among African-Americans may arise because of their greater exposure to risk factors, but there are notable differences between the groups as to the salience of these risk factors. For example, low socio-economic status, welfare dependency, broken families, young mothers, small homes, problematic fathers, and the mothers’ use of physical punishment were clear risk factors for Caucasian but not African-American boys. This suggests that different developmental processes may be involved and that risk behaviours may not share the same meaning or be experienced with similar intensity. (For an example of a developmental approach in the Australian context drawing similar conclusions about the role of developmental pathways, see Homel et al. 1999.)

12 Fuller discussion of the characteristics of Aboriginal law is not attempted here. Suffice it to say that it is fundamentally different from English law, especially the distinction between secular and sacred areas. The role of kinship, restitution, and private versus collective action is striking, as are aspects such as strict liability and the character of punishments, to note a few of many divergences (see Stanner 1979; Maddock 1984; ALRC 1986). 13 The term is borrowed from Trigger’s (1992) account of the Doomadgee people of the Gulf country, who use the expression to talk about early contact with ‘whites’. 14 The defeat of worthy opponents in military and policing adventures, thereby demonstrating the superiority of the ‘Whites’ beating the native at field-craft, was the form such appropriation took and inspired, among others, Baden-Powell’s Boy Scout movement (McDonald 1993). At times this particular manifestation of ‘orientalist’ thinking was costly despite technical superiority. Pedersen and Woorammurra (1995) showed how White adventurers were attracted to the Kimberley in the 1890s in the pursuit of the native ‘resistance leader’ Jandamarra for the ‘trophy’ and prestige his death or capture would give them. The irony eluded these colonial adventurers and police eventually followed the practice recommended everywhere through the Empire, that is, employing native police to do the work (Anderson and Killingray 1991). 15 Mary Durack’s (1959) famous account of her family’s Kimberley cattle empire, Kings in Grass Castles, is replete with examples of these irresistible accommodations. See also Kyle Little’s (1957) description of welfare policing in the postwar Northern Territory and Ed Morrow’s (1937) description of the work of the North West Australian Mounted Police. 16 HREOC (1997) estimates that between one in three and one in ten Aboriginal children over the period 1911–1970 were forcibly removed from their families during the assimilationist period. 17 Duckworth and colleagues’ (1982) characterisation of Aboriginal imprisonment in Northwest Australia as a ‘rite of passage’ for young Aborigines to be endured with a ‘down to earth matter of fact’ attitude was reminiscent of Goffman’s description of the under-life of asylums (see also Beresford and Omaji 1996). 18 The survey was conducted by the ABS in 1994 on behalf of the Aboriginal and Torres Strait Islander Corporation (ATSIC). It covered issues germane to Indigenous people including questions relating to the Aboriginal experience of the criminal justice system. The NATSI survey provided self-report arrest and assault victimisation data and offered considerable scope for the analysis of socio-demographic variables (including health, housing, education and cultural factors) and indigenous crime. Being confined to Aborigines, however, the survey lacks the important comparative context (see generally Altman and Taylor 1996).

19 The notion used here owes a debt to the criticisms of the influential mythic formulations of Frederick J. Turner’s ‘Frontier Thesis’ and Geoffrey Blainey’s concept of the outback as an Australian frontier (see his Tyranny of Distance). Blainey’s treatment of the frontier was at pains to show the differences in the role the frontier myth played in fashioning Australian identity. By contrasting it with the individualism of gunmen ‘heroes’ of the American West, and the collective role of the RMCP as pacifist agency, he created the individualism of the egalitarian bushmen. As Slotkin (1992) and Furniss (1997) argue, these ubiquitous frontier histories use myth as a form for conveying historical ‘truths’ via narratives rich in symbolism and metaphor which reduce colonisation to heroic accounts of nation-building. 20 The Northern Territory on 22 October 2001 via the Justice Act (No. 2) and, Sentencing Amendment Act (No. 3), reluctantly repealed its mandatory sentencing laws following intense southern and international criticism and revealed the alternate weak and strong capacity of the federal nation-state. Before the decriminalisation of drunkenness, mandatory sentencing regimes for public drunkenness served a similar function in Western Australia and elsewhere by providing the means to control Aboriginal disorder (Broadhurst 1987). 21 Bartlett’s (1999) description of the legal struggle over native title sadly illustrates the limitations of legalism in achieving fairness and substantive equality through the Australian courts. When cultural and other covenant rights are presumed to be simply inherent in the resumption of common law land title ‘granted’ by formal recognition of equality, their indivisible integrity is compromised.