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Faculty of Law, UNSW
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O'Shane, Pat --- "Corroding the Soul of the Nation" [2002] UNSWLawJl 11; (2002) 25(1) UNSW Law Journal 212

CORRODING THE SOUL OF THE NATION

PAT O’SHANE AM[*]

For decades on end, the Western European, middle class, male science of anthropology described other racial and ethnic groups, particularly Black races, as being aggressive, brutish, and violent. The treatment of women in those groups was frequently cited to illustrate these propositions. Much of that thinking has been rejected as racist. As we humans evolve to a better understanding of our nature and being, we recognise that aggression and violence are part of our make-up as humans, as it is for so many other species. What perpetuates violence, or why violence is manifested depends very much on the circumstances in which individuals or groups are located. Despite this realisation, the racist assumptions behind those early anthropological ideas are still prevalent in the perceptions and conceptions of some scholars, many commentators, and multitudinous administrators of law enforcement and the criminal justice system - most especially in Australia with regard to Aborigines.

Australia has never fully acknowledged the history of Aboriginal contact with the British and their convict cargoes, succeeded by waves of western European immigrants. That contact was marked by the aggressive, brutish, and violent dispossession of the Indigenous peoples, their lands, their languages, and their culture. The legacy of this experience has been, and continues to be, the destruction of communities, the fracturing of families and the impoverishment of Indigenes in all aspects of social and economic life. Indigenous Australian communities suffer the highest levels of involvement with the criminal justice system. Incarceration, recidivism, ill health, mental illness, unemployment, dysfunctional families, inadequacy, hopelessness and despair are all too common. This in turn means that within Indigenous communities there is a growing loss of social controls, whether exercised through family structures or social sanctions. Against that background, it is not surprising that violence is widespread amongst Indigenous communities.

While it is often said that violence is not the preserve of the poor and the dispossessed, experience tells us that those conditions are most likely to lead to expressions of violence. Experience also shows that, given the self-containment of many Indigenous communities, violence is often committed against family members and friends. The most vulnerable family members are children and women.

Yet for the past three decades, there has been a collective attempt to deny that this is the Indigenous experience. Many Indigenous women have angrily rejected suggestions that their men are as violent as the objective evidence indicates they are, and that high rates of mortality and morbidity have been inflicted on them as a consequence. One reason for this was their fear of a racist backlash, especially at the hands of police. Historically, police have been at the forefront of the brutality and violent dispossession of Indigenous communities, especially with respect to the fracturing of families. This is evident in their role as frontline administrators in Aboriginal Affairs, as agents of the state, and in their failure to protect individuals or to intervene in communities where violence was being acted out.

In addition, Indigenous Australians have not enjoyed the protection of the curial system in identifying their civil, political and human rights as a subject people within a nation, or their rights as members of the Australian community. There has never been any appropriate recognition of Indigenous Australians as Indigenous Peoples. With the exception of cosmetic legislation and programs, successive governments have flatly denied Indigenous rights. Consequently, Aboriginal victims of Aboriginal violence do not perceive the criminal justice system as a place where they might seek justice and relief from the daily attacks upon their personal and physical integrity. They feel themselves condemned to suffer.

However, a new generation of thinking has recently sought to expose in all its rawness the extent of the violence that is perpetrated on Indigenous communities by their very own members. Only in recent years have Indigenous authorities, particularly the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), made any attempt to identify the extent of these problems and to develop proposals aimed at educating the communities, and at replacing a culture of violence with a culture of conflict resolution.

Within non-Aboriginal communities, which are usually located within urban populations, there are numerous resources through which women and children can find respite and refuge, and some form of justice. Broad education programs, directed at the whole community, are also in existence. Perpetrators can be diverted into programs in anger management, conflict resolution, financial management, responsible alcohol consumption, communication, self-awareness, crisis management and the like. Such programs help them to understand themselves and give them the skills to deal with situations of conflict using non-violent means.

By contrast, Aboriginal communities are often isolated and small – consisting often of a few families, many members of which are interrelated. They lack human and financial resources, training, and other community incidents which afford non-Aboriginal victims of violence respite and refuge. As so many Indigenous women who have been victims of violence say, they have to go back to the same family and community situations out of which they have come, and try to deal with the violence in its own context. It is a powerful restriction.

ATSIC has made some belated, and all too ineffectual, efforts at educating Indigenous communities, and has attempted to provide them with some level of necessary resources. Yet the fact remains that the incidence of violence in Aboriginal communities is rightly the responsibility of all levels of government, including public institutions and departments, such as health, housing, education, police, and the courts (to name a few). That Indigenous communities have to rely entirely on the resources of ATSIC is a continuing indictment of Australian mainstream society and Australian governments. It is also indicative of an attitude that Indigenous people are a people apart from the Australian society, as the Anglo-Australian community has forced them to be for more than two centuries.

Even with ATSIC resources, there is still a lamentable lack of proper training for appropriate staff to enable Indigenous people to deal with the victims of violence at every level. Likewise, no concerted, integrated programs have been proposed or developed by any government to rectify the desperate levels of poverty, general impoverishment, and all of the other aspects of living in Indigenous communities which enable violence to flourish.

It is essential that governments not only recognise their responsibilities to these communities, but that they also accept the responsibility for rectifying the situations that prevail therein. At the moment, they are simply throwing the people and their problems onto their already overburdened personnel.

To raise public consciousness about the extent of the problem, anti-violence programs must be integrated with other public education programs, and disseminated through Indigenous media, community councils, schools, health centres, and legal centres. Such programs must aim to develop strong people, armed with the attitudes needed to build cohesive, harmonious communities in which members feel secure and protected. These communities must be capable of devising their own appropriate sanctions against offenders without demonising them or destroying their ability to find their way back into the community as fully functioning people capable of making meaningful contributions.

The issue of inter-gender violence is very complex. It is simply not true that male against female violence is merely an expression of superior male strength and sexual dominance, however fundamental those aspects may be to our gender relations. Accordingly, this violence is not amenable to simple remedies, such as incarceration of the offender, regardless of the level of violence or the context in which it occurs. The people who are most likely to be victims are those who are most vocal in calling for alternatives to such harsh measures. Of course, for the worst offenders, there is only one option – removal of that person from the community for the good of the individual victim(s) and the community.

Therein lies a massive challenge. We must develop the means to deal with the problems of Indigenous violence whilst at the same time allowing all of the actors in it to be involved in the solutions. Multi-faceted plans dealing with all aspects of Indigenous life need to be implemented – the victims themselves have been telling us that for at least a couple of years. They know the problems intimately and they can envisage solutions. At times of increased stress, that is, at the very time when they have experienced yet another violent episode, they will call for harsh punishment for their assailants. In my experience, when the heat has subsided, they will call for long-term programs which will help to obviate the incidence of violence, and militate against its festering. Such programs must ensure that all members of the community are kept within the community (where possible), thereby ensuring its continuation as a viable social construct, strengthening family and social ties, and ensuring continued cultural growth.

But until governments are prepared to accept their proper responsibilities towards Indigenous Australians, instead of throwing these issues back onto the people, the violence which stalks us will continue to corrode the soul of the nation.


[*] Magistrate, Local Court of New South Wales.


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