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Brady, Charlotte --- "The Same Power Effect': The Normative Aspiration Of Self-Determination And The West Kimberley Regional Prison" [2022] UNSWLawJlStuS 28; (2022) UNSWLJ Student Series No 22-28




The normative aspiration of Indigenous self-determination is to transform the power relationship between First Nations and colonial states. Political recognition of Indigenous rights and laws that do not redistribute power to First Nations reinforce and sustain the power of the colonial state. This paper will argue that the West Kimberley Regional Prison (‘WKPR’), a custodial facility in north-west Western Australia designed to accommodate First Nations offenders from the Kimberley region, does not meet this normative aspiration. It is a working example of coercive political recognition that co-opts Indigenous knowledges and aspirations to legitimise an inescapably colonial institution.

Part I will make the case for defining the normative aspiration of self-determination in the terms set out in the opening of this paper and contrast this aspiration against strategies of coercive political recognition that reinforce the power of the colonial state. Part II will apply this normative aspiration as a benchmark to the WKRP, and show how this policy fails to redistribute bargaining power from the Western Australian colonial government to the First Nations of the West Kimberley.


A Self-determination in International Law

The concept of self-determination underpins the liberatory struggles of Indigenous peoples across the globe.[2] The concept derives its meaning and cogency from its role in international law. Self-determination is a customary doctrine of international law that is now codified in several treaties.[3] The International Covenant on Civil and Political Rights (‘ICCPR’) defines self-determination as the right of a people to ‘freely determine their political status and freely pursue their economic, social and cultural development.’[4]

Defining which peoples have this right to self-determination has been a contested process. Self-determination rose to prominence in the mid-20th century from decolonial struggles within the former colonies of the major European empires.[5] Indigenous peoples were until recently, however, excluded from the groups entitled to self-determination under international law. Under the customary ‘salt water’ doctrine, ‘a people’ was defined as a territory separate to the colonial power from which independence was claimed.[6] This doctrine understood self-determination as the retraction of empire from conquered territories with features of social, economic and geographical organisation recognisable to European civilisations. That is, ‘a people’ had to be recognisable as a nation-state, whereas the organisation of many Indigenous societies does not bear resemblance to this state form.[7]

More recently self-determination has been rearticulated in international law as an aspiration of Indigenous peoples.[8] From the 1970s a vocal minority of First Nations activists within the United Nations advocated for an Indigenous controlled-body to be established within UN ecosystem. The first Working Group on Indigenous Populations was formed in 1982.[9] Over 20 years of advocacy by the Working Group culminated in the UN Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).[10]

This instrument asserted that self-determination, defined in the same terms as under the ICCPR, is a right of Indigenous peoples.[11] Further, Article 4 states that Indigenous peoples exercising self-determination have the right to ‘autonomy of self-government in matters relating to...internal and local affairs...[and] financing their autonomous functions.’ The UN Human Rights Council adopted UNDRIP in September 2007. Australia, under the Howard Government, joined fellow settler-colonial states Canada, Aoteroa and the United States in voting against UNDRIP. Australia subsequently endorsed the declaration in April 2009.[12] A bill to establish a body to review the implementation of UNDRIP is currently before the federal Senate.[13]

B Self-determination and Indigenous Australia

Self-determination has been the aspiration underpinning the of rights struggles of Aboriginal and Torres Strait Islander peoples since at least the Whitlam Government era,[14] and is now buoyed by the obligations imposed by UNDRIP.[15] Self-determination struggles are tethered to the general aspirations articulated in this instrument, but the concept does not prescribe a unitary strategy. Indeed, self-determination as a praxis is given specific content in the Australian context by the complexity of the process of colonisation that is occurring here. The radiation of the Australian colony from the east coast since 1788 has been mediated by both the diverse geography of the continent and the resistance of the more than 200 Aboriginal and Torres Strait Islander nations that have subsisted on these lands since time immemorial.[16]

C The Normative Aspiration of Self-determination

Self-determination necessarily describes a plurality of strategies. It is beyond the scope of this paper to discuss the effectiveness of any one praxis. Indeed, Lino argues it would be counter to the project of Indigenous polities exercising control over their own fates for any individual to advocate for a definitive strategy.[17] This position should be modified, to exclude advocacy from any position that is not accountable to a self-determination struggle lead by First Nations. This is necessary as, though Lino rejects relativism, stretching the proposition to its logical conclusion would render any praxis of self-determination inconsistent with the concept self-determination, because it forecloses on other praxes. Further, the proposition impliedly places the entire burden of advocacy and political mobilisation on First Nations alone, rather than on coalitions of Indigenous and non-Indigenous allies in unified struggle.

Self-determination is not a unitary strategy, but this is not to say that self-determination is an entirely fluid concept without any essential content.

The self-determination of colonised Indigenous peoples means redistribution of power to First Nations from the states they have been colonised by.[18] This is the normative aspiration of self-determination. Strategies of self-determination concern how this power relationship should be equalised, or dependence on the state abolished altogether. But the normative aspiration is a benchmark against which any policy at the interface of First Nations and the colonial state can be assessed to determine whether it is a strategy of self-determination at all.

D Contrasting the ‘Politics of Recognition’

Using this benchmark is aided by drawing a distinction between self-determination and coercive forms of political recognition that fail to shift power from the colonial state to First Nations.[19] Coulthard provides an instructive critique of the ‘politics of recognition,’ described as a shift in the ‘modus operandi’ of ‘colonial power relations...from a more or less unconcealed structure of domination to a form of colonial governance that works through the medium of state recognition and accommodation. Political recognition that fails to redistribute power is, Coulthard argues Is ‘structurally oriented around achieving the same power effect [as colonial domination]... the dispossession of Indigenous peoples of their land and self-determining authority.’[20]

Coulthard draws on Fanon’s understanding of the colonial relationship as more than a structure of direct and violent dispossession. Rather, it is also a structure of social relations cultivated by colonial power-holders through institutions of governance and culture that naturalise hierarchy and produce ‘colonised subjects.’ For Fanon, whose anticolonial theory was informed by his background in psychiatry, the colonised subject was one who had internalised the ‘colonial thought, desire, and behaviour... required for their continued domination’.[21] Coulthard examines this social relation as it is translated juridically at the level of the relationship between the colonial state and First Nations polities. For Coulthard, under the conditions of unequal bargaining power that exist in colonial societies, recognition of First Nations rights and law by the colonial state is easily constituted in a manner consistent with the enduring power and economic organisation of that state.[22]

Coulthard’s case study is the recognition of First Nations land rights in Canadian law. Under Canadian common law Indigenous land rights that survived Crown sovereignty may be infringed by provincial governments if there is a ‘compelling and substantial legislative objective’ to the infringement.[23] A phenomenon Lino refers to as ‘juridification,’ this recognition renders courts, and therefore the colonial state, final arbiter of the scope of First Nations land rights.[24] This exemplifies for Coulthard that political recognition that does not ‘throw into question the background legal, political, and economic framework of the colonial relationship itself’ is recognition that reinforces the power of the colonial state.[25] A policy must challenge this relationship, or it cannot effect the self-determination of Indigenous peoples. The remainder of this paper will argue that the WKRP does not redistribute bargaining power between Aboriginal peoples and the Australian state, but rather exemplifies coercive political recognition.


A The Rationale and Design of the WKRP

The WKRP is located 2,380 kms north of Perth and 7 kms south of the remote township of Derby, on the north-west coast of Western Australia.[26] It was designed in consultation with Kimberley First Nations, and planned, built and managed to ‘embrace the culture and practices of the First Peoples of the Kimberley Region.’[27] It was designed to accommodate 150 prisoners (120 men and 30 women) in an expansive 42 building campus enclosed by a low wire fence and nestled by eucalyptus and boab trees that were preserved in the construction process.[28] The largest Aboriginal groups in the West Kimberley are the Warwa and Nyikina clans,[29] but the region is home to more than 30 language groups, whose social organisation is determined by a complex system of skin groups.[30] The scope of the campus was intended to accommodate separation of inmates living areas into different skin groups to minimise intracultural conflict.[31]

The majority of prisoners are housed in 22 ‘self-care’ accommodation units, dorms with separate bedrooms and amenities and enclosed verandahs.[32] The units are centred around shared kitchen and laundry facilities, cultural meeting areas and the main recreation oval.[33] Maximum-security prisoners are secured at night in cell-like rooms, but all prisoners participate in cultural and vocational programs through the day.[34] Staff are trained in ‘relational security,’ centred on building trust and understanding between guards and prisoners.[35] There have been relatively few recorded incidents of staff using force or restraint against inmates.[36]

Architectural appraisal of the project has celebrated how ‘the colours of the landscape inform[] the buildings’ exterior colour palette’, and the absence of ‘solid barriers...allow views of the landscape within and beyond the perimeter’ to enhance ‘prisoners’ sense of connection to country.’[37] One of the architects on the project has reflected that the design ‘makes one wonder whether the fence is really keeping people in, or protecting the prisoners...from the troubling influences of the outside world.’[38] The first official inspection of the facility in 2015 stated that inmates ‘displayed a sense of spiritual strength and wellness’ as compared to prisoners from the Kimberley detained in custodial facilities off Country.[39]

The WKRP forms part of the Kimberley Custodial Blueprint developed to respond to both the high incidence of crime and recidivism in the Kimberley region and the shortage of prisoner accommodation.[40] In the early 2000s Broome Regional Prison was at overcapacity following the closure of Wyndham Prison in the early 1990s. The latter facility was shut down following a damning report by human rights watchdog Amnesty International, which found prisoners were put at serious risk by low supervision and critically overcrowded dormitory-style accommodation.[41]

In 2005 the Gallop Labor Government established the Kimberley Aboriginal Reference Group (KARG). KARG was constituted by representatives from several regional organisations including the Aboriginal Housing Board, the Kimberley Development Commission, the Indigenous Women’s Council and local councils, as well as the Commissioner of the Aboriginal Torres Strait Islander Commission and representatives from the Department of Justice. The function of the group was to assist the Western Australian Government to consider ‘new ways to approach the sentencing, management, rehabilitation and reintegration of prisoners back into the community’ and invite submissions on the custodial plan. KARG had no mandate to force compliance with its recommendations.[42]

KARG set out its recommendations for the custodial plan in two reports released in October 2005 and February 2006, recommending that a prison be built in the West Kimberley to accommodate Indigenous offenders from the region on Country. The reports recommended that the new prison offer rehabilitation and release programs developed in consultation with local Aboriginal-controlled organisations.[43] The recommendations were distilled into a ‘philosophy’ of five principles that were to guide the design and operation of the facility - proximity to land and family; recognition and respect of cultural responsibilities; recognition of spiritual relationships to land, sea and waterways; acknowledgment of the centrality of kinship and family responsibilities to Aboriginal society and community wellbeing; and facilitation of communities taking responsibility for offender reintegration.[44]

The brief and funding for the prison was announced in the 2007/2008 budget and the tender went to two architectural firms.[45] TAG Architects specialised in correctional facilities and Iredale Pederson Hook Architects specialised in Indigenous projects. The latter had recently completed an educational complex in the remote community of Wiluna,[46] and its community consultation and evaluation processes were central to its brand.[47] Construction was undertaken on a revised budget of $150 million and the prison was officially opened in November 2012.[48]

B The WKPR and Self-determination

Assessment of the merits of WKPR as a policy of self-determination is justified on the basis that the Western Australian executive has stated that self-determination is a policy mandate of the facility. The ‘philosophy’ of WKPR released by the Western Australian Department of Corrective Services in 2012 did not expressly identify ‘self-determination’ as an aspiration of the facility.[49] It can be speculated that the Barnett Liberal Government of the day likely avoided the language of self-determination, due to its association with the Whitlam Labor tradition and its political unpalatability in a mining-centred economy like Western Australia. However, the most recent inspection report from the Officer of the Inspectorate of Custodial Services released in January 2021 expressly identifies self-determination as part of the WKPR ‘ethos.’[50]

It may be unnecessary to restrict this kind of critical assessment to only those policies that are expressly identified by governments as aimed at self-determination. The WKPR plan arose from an extensive community consultation process and purports to give First Nations in the Kimberley greater control over the rehabilitation of offenders from their communities. It could be taken at face-value as promoting self-organisation and self-government. The normative aspiration of self-determination should benchmark any policy operating at the interface of colonial states and First Nations communities.

The expression of the social and cultural organisation of Kimberley First Nations through the institution and logic of a prison is not self-determination. The WKPR does not rearticulate the relationship between these Indigenous polities and the colonial state. The prison has been and still is instrumental to the colonisation of Australia, made nowhere more clear than in the colonial history of the Kimberley itself. Prisons to detain exclusively Aboriginal and Torres Strait Islander prisoners have been used by the Western Australian colonial government since the 1840s.[51]

The first ‘native prison’ was built on Rottnest Island to service the expansion of the Swan River colony.[52] Like the ‘self-care’ accommodation within the WKPR,[53] this island gaol was intended to be a cost-effective solution to a burgeoning Indigenous prison population. Prisoners could be siloed on the island and live self-sufficiently, weakening resistance at the frontiers of colonial enterprise on the mainland.[54] In the 1870s and 1880s further ‘native prisons’ were established in the Kimberley in train with the expansion of pastoral operations, to abate cattle theft by Aboriginal offenders excluded from their lands and traditional cultivars.[55] The labour power of these prisoners was exploited in ‘road gangs’ to supplement convict labour.[56]

This colonial legacy of the prison is reflected today in the gross overrepresentation of First Nations peoples in the Western Australian custodial system. This trend holds across all states and territories,[57] but is particularly egregious in Western Australia. Western Australia does not have an agency equivalent to the NSW Bureau of Crime Statistics and Research and does not publish digested crime statistics.[58] The Department of Justice releases raw statistics each quarter on the profile of prisoners, that are not broken down by region or offence type. This presents a real barrier to effective monitoring of custodial facilities across the state.[59]

The latest quarterly statistics indicate that although First Nations peoples represent 3.3% of the total population of Western Australia,[60] they make up 40% of adults in prison across the state.[61] This is 11% higher than the national average.[62] Additionally, First Nations people make up 39% of men in prison and almost 50% of women in prison.[63] At the time the WKPR was opened, 95% of prisoners in Broome Regional Prison were First Nations peoples.[64]

The colonial history of Western Australia demonstrates that prisons arose as a response to social harms symptomatic of dispossession. This institution was used to detain First Nations peoples forced off their lands and absorb their labour into the new colonial economy.[65] This strategy of colonisation has continued and intensified.

Crime is not a stable category, but is socially constructed by the decisions of state agencies to both criminalise certain behaviour and increase surveillance over certain peoples.[66] Criminology scholars have periodised the current organisation of capitalist economies as neoliberalism, a process in motion since the 1980s and characterised by the retraction of the welfare state in favour of the greater ‘responsibilisation’ of individuals.[67] Staines and Zanhow, among others, have observed that neoliberalism has been accompanied by an expansion in punitive systems of surveillance over the most socio-economically disadvantaged communities.[68] This process has rendered the criminal justice system a first response to the ‘social problems that burden people who are ensconced in poverty’ like theft, homelessness and drug use.[69]

In consequence, higher rates of crime, surveillance and incarceration are tethered to socio-economic strain. Remote Indigenous communities, like those in the West Kimberley which the WKRP services, are among the most socio-economically disadvantaged groups in Australian society. More than 50% of people living in remote communities survive on incomes below the poverty line and a third rely on social security benefits as their sole income.[70] A disproportionate percentage of benefits are delivered via the Community Development Program (CDP), under which payments are conditional on onerous mutual obligation requirements. The CDP has generated higher income suspension penalties than any other ‘workfare’ program yet deployed in Australia and means that income streams in remote communities are generally ‘lumpy.’[71] Exacerbating this, the cost of living in remote communities is relatively high, due to geographical isolation from industry and services. For example, food costs in remote communities are up to 40% higher than in urban areas.[72]

Research into drivers of criminal offending in remote communities point to a strong link between property crime and drug use, and poverty.[73] For example ‘chroming’ (inhaling petrol), an epidemic in remote communities, has been cited by remote community members as a strategy to suppress hunger.[74] Staines and Zanhow found that in remote communities in Queensland the temporary increase in the base unemployment benefit during the COVID-19 pandemic corresponded to a universal decrease in property crime in remote communities - 34% in alcohol-restricted remote communities, 20% in partially dry communities and 23% in communities without alcohol restrictions.[75] This seems to indicate that, as in the early colonisation of Western Australian, the prison punishes responses to the material traumas of colonisation.

C The WKPR Embodies Coercive Political Recognition

The expansion of Australia’s custodial system since 1788 marks a transition in the processes of colonisation from direct frontier violence to diffuse discipline and punishment via a sophisticated state structure.[76] Building a prison on Country and articulating the social and cultural organisation of Kimberley First Nations through a fenced campus of cell-like living facilities, under the surveillance of primarily non-Indigenous prison staff, does not ‘throw into question the background legal, political, and economic framework of the colonial relationship itself.’ The WKRP does not rearticulate power. Rather it co-opts the knowledges and ‘life-worlds’ of Kimberley First Nations to give legitimacy to an instrument of colonial dominance.

The paucity of the WKPR as a project of self-determination is manifest in its failure to deliver on the five mandates set out in its establishing ‘philosophy.’ Principally, the WKPR has not provided First Nations prisoners in the Kimberley with a custodial facility proximate to Country and family. The most recent inspection report from the Western Australian Office of the Inspector of Custodial services, released in 2020, found that only two thirds of Indigenous prisoners from the Kimberley are held at WKRP, an improvement from less than 50% in 2017.[77] Simultaneously, 10% of prisoners detained at the facility are non-Indigenous.[78] As at 2020, the prison now accommodates 223 inmates,[79] almost 50% above its original capacity of 150. Overcrowding has interfered with the effective operation of the self-care accommodation units, and the whole facility was supported by only one Life Skills Officer.[80] Overcrowding has also likely made it difficult to accommodate different skin groups in independent living areas.

Neither had the facility respected the cultural responsibilities of inmates. The first executive review of WKPR in 2015 found the ‘Spiritual Centre’ had never been used, which raised questions then about the effectiveness of the community consultation process.[81] The 2020 report stated that a long-promised Elders group has never been established,[82] though the Western Australian Government has asserted that an Elders group was established in 2020, albeit operating in a limited capacity.[83] In 2020 the facility had recruited just 16 Aboriginal staff members,[84] up from 12 in 2017,[85] most applicants likely deterred by the onerous public service recruitment requirements.[86] Additionally, offenders believed the cultural competency of non-Indigenous staff was lacking, contra self-reports from staff.[87] Relatedly, in a separate study Molnar et al found that inmates also do not have access to traditional medicine and foods to address cultural sickness, and were unable to practice culturally-relevant dispute resolution practices.[88]

The facility has not prioritised inmates maintaining connection with family, kin and Country. The report notes that the facility had a flexible approach towards family visitation, but visitation had been suspended for several periods during the COVID-19 lockdowns and the e-visit facility was not operational until late April 2020 due to staffing shortages.[89] As at 2020 many inmates were not receiving visitors.[90] The 2020 report found that an Aboriginal Visitors Scheme was not provided for inmates without family supports, though this was a key recommendation of the Royal Commission into Aboriginal Deaths in Custody to prevent self-harm and suicide in custody.[91] The 2020 Report identified establishment of an AVS as a priority, given the prevalence of suicide among First Nations communities in the Kimberley.[92] The Western Australian Government has advised an AVS officer was employed in August 2020.[93]

Further inmates have experienced significant difficulties attending funerals. Molnar et al found in interviews with inmates that some had been refused consent to attend the funerals of extended family members, which inmates attributed to a lack of understanding of Aboriginal kinship networks on the part of the prison administration.[94] In the period from January 2019 to March 2020, just 13 of 48 applications made by prisoners to attend funerals were approved.[95] In response a criticism, the WKPR implemented a new order in March 2020 which ‘acknowledged that Aboriginal kinship and extended family relationships should be regarded as significant relationships when considering access to compassionate leave.’[96] Of the five applications made since the order was implemented, four have been approved.[97]

The facility has not given First Nations in the West Kimberley greater control over offender rehabilitation and reintegration. WKPR does not deliver any offender treatment programs developed with Kimberley First Nations group.[98] When this was flagged in the second review of the facility in 2017, the Western Australian Government advised the programs would be reviewed.[99] However no substantive changes have since been made.[100] Additionally, very few offender rehabilitation and treatment programs are run for women inmates.[101] This has made it almost impossible for women at WKPR to apply for parole and has compelled many inmates to transfer off Country to southern prisons where programs are available.[102] The Western Australian Government has responded to the Inspector’s recommendation that the facility deliver offender programs developed on Country and for women, advising that WKRP already offers offender programs that are ‘Aboriginal specific’ and that there are not enough women at the facility to justify the establishment of autonomous groups.[103]

Finally, the prison itself has failed to withstand the intensive Kimberley climate. Despite the emphasis on weather-proofing in the design process, the facility has fallen into disrepair. The 2017 report noted that prisoner accommodation was affected by water damage, mould and electrical faults, with water rivulets observed dripping from light fixtures and chords. [104] The ceiling of one of the office buildings has fallen in completely.[105] The report notes the high maintenance costs in remote areas and recommends this factor be prioritised in the building of the new Broome Prison.[106] The disintegrating structure of the WKPR is itself symbolic of the brittleness of this prison facility as a strategy of Indigenous empowerment, of how manifestly inappropriate this blunt colonial institution is to the resolution of trauma and dispossession in the West Kimberley.

It is important to reiterate here that the WKRP has not failed to rearticulate the relationship between Kimberley First Nations and Western Australian government because of a lack of political appetite and funding commitments. Prison as a policy is fundamentally incapable of giving expression to the autonomous needs and aspirations of Aboriginal communities in the Kimberley, because it is a fundamental node in the ‘complex web of subjugating strategies’ deployed in the colonisation of Australia.[107] The outcome of the consultation process with KARG was given a predetermined shape by the state. The Western Australian Government asked KARG how the interests of First Nations could be recognised within the colonial framework of the custodial system, not how Kimberley First Nations wanted to respond to harm in their communities. Relevantly, in 2005 KARG advised there was support in the Kimberley for community-based alternatives to prison.[108]

D The Real Practice of Self-determination in the Kimberley

Kimberley First Nations already practice responses to poverty crime, drug use and violent offending that rearticulate their power relationship with the Western Australian government. Kimberley First Nations are organised according to complex systems of law originating in Ngarrangkarni (‘the Dreaming’) from which pass ‘specific group and personal relationships to land, as well as corresponding rights and responsibilities.’[109] Law provides the authority and tools for these communities to self-organise responses to social harm that exist outside state interventions.[110]

For example, the Kimberley Aboriginal Law and Culture Centre at Fitzroy Crossing has pioneered Yiriman, a cultural-immersion program for Aboriginal young people.[111] Yiriman assists young people to build material and cultural supports that reduce the risk of contact with the juvenile justice system.[112] It has received positive appraisal from several state agencies.[113] The Numbud night patrol in Derby provides a transport service that links young people, people escaping family violence, drug users and other at-risk groups with safe accommodation and supports to resolve harm within the community and minimise contact with police.[114] Numbud has persisted, despite Derby police periodically confiscating the patrol’s bus.[115] These examples show how West Kimberly First Nations already challenge the colonial relationship, and illustrate how drastically the WKPR fails to do the same.


This paper has argued that the WKRP reinforces rather than transforms the unequal bargaining power of West Kimberley First Nations and the Western Australian government. This normative aspiration is the threshold of self-determination, and the benchmark against which any policy purporting to empower First Nations should be assessed.

This paper has not advocated any strategy of self-determination. But a referendum on establishing a constitutionally-enshrined Voice to Parliament has been called,[116] per the mandate of the Uluru Statement from the Heart and its extensive regional dialogues.[117] This signals that recognition of Indigenous sovereignty within the liberal democratic structures of the Australian state is the dominant strategy of Indigenous self-determination at this juncture. Indeed, this is consistent with UNDRIP, which sets out at article 46(1) that nothing the Declaration authorises or encourages ‘any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.’[118]

This political development intensifies the imperative need for analytical tools to determine which engagements between the state and Indigenous peoples promote self-determination, and which sustain colonial dominance. Used as a hard benchmark, the normative aspiration of self-determination defined and defended in this paper is such a tool.

[1] This essay was written on unceded Wangal and Bedegal lands.

[2] See eg Asmi Wood, ‘Self-Determination Under International Law and Some Possibilities for Australia’s Indigenous Peoples’ in Laura Rademaker and Tim Rowse (eds), Indigenous Self-Determination in Australia: History and Historiography (ANU Press, 2020) 269.

[3] Dylan Lino, 'The Politics of Inclusion: The Right of Self-Determination, Statutory Bills of Rights and Indigenous Peoples' [2010] MelbULawRw 29; (2010) 34 Melbourne University Law Review 839 citing James Anaya, Indigenous Peoples in InternationalLaw (Oxford University Press) 2004) 97.

[4] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 1.

[5] Michael Freeman, 'The Right to Self-Determination in International Politics: Six Theories in Search of a Policy' (1999) 25(3) Review of International Studies 355, 356.

[6] See Lino (n 3) 847 citing Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (Cambridge University Press, 2007) 155-7, 134.

[7] Ibid.

[8] See Megan Davis, 'Indigenous Constitutional Recognition from the Point of View of Self-Determination and its Exercise Through Democratic Participation' [2015] IndigLawB 33; (2015) 8(19) Indigenous Law Bulletin 10, 10, and see generally Wood (n 2).

[9] See Wood (n 2) 282-4.

[10] UNDRIP, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).

[11] Ibid art 3.

[12] Wood (n 2) 282-24.

[13] United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 (Cth), brought by Greens Senator Lidia Thorpe.

[14] Rademaker and Rowse (n 2) 1, 4.

[15] Davis (n 8) 10. See generally Wood (n 2) 284.

[16] See e.g. Heather McRae et al, Indigenous Legal Issue: Commentary and Materials (Thomson Reuters, 4th ed, 2009) 9-64.

[17] Lino (n 3) 850.

[18] See e.g. Megan Davis, 'Aboriginal Women: The Right to Self-Determination' (2012) Delivered at Murrup Barak, Melbourne Institute for Indigenous Development, University of Melbourne, 8 November 2012) 78, Glen Sean Coulthard, Red Skin, White Masks (University of Minnesota Press, 2014) 48 and Lino (n 3) 853.

[19] See Irene Watson, 'First Nations and the Colonial Project' (2016) 1(1) Inter Gentes 30.

[20] Coulthard (n 18) 25.

[21] Coulthard (n 18) 16-17 citing Franz Fanon, Black Skin, White Masks (Boston Grove Press, 1991).

[22] Ibid.

[23] Ibid, 40-41 citing Delgamuukw v British Colombia [1997] 3 SCR 1010.

[24] Lino (n 3) 860-1.

[25] Coulthard (n 18) 40-1.

[26] Office of the Inspector of Custodial Services, ‘2020 Inspection of West Kimberley Regional Prison’ (Report 133, January 2021) xi. (‘OICS 2020 (N 26)’).

[27] Elizabeth Grant and Peter Hobbs, 'West Kimberley Regional Prison' (published 9 October 2013) <>. See also Western Australia Department of Corrective Services, West Kimberley Regional Prison Philosophy (2012).

[28] Grant and Hobbs (n 27).

[29] Timea Molnar, John Rynne and Julianne Webster, 'An Appreciative Assessment of Prison Quality for Australian First Peoples of the Kimberley Region in Western Australia' (2018) 13(3) An International Journal of Evidence-Based Research, Policy and Practice 427, 433.

[30] ‘About’, Kimberley Aboriginal Law and Culture Centre (Website) <> .

[31] Grant and Hobbs (n 27).

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Office of the Inspector of Custodial Services, ‘Report of an Announced Inspection of West Kimberley and Broome Regional Prisons’ (Report 96, March 2015) 3.12 (‘OICS 2015’).

[36] Ibid 3.45-3.46 and OICS 2020 (n 26) 29.

[37] Grant and Hobbs (n 27).

[38] Ibid.

[39] OICS 2015 (n 35) 1.31.

[40] OICS 2020 (n 26) 1.1.

[41] Ibid; see Amnesty International, Australia: A Criminal Justice System Weighted Against Aboriginal People (January 1993).

[42] ‘Government Starts Kimberley Custodial Planning’ (Western Australian Government, Media Release, Online, 2 June 2005) < >.

[43] ‘Other Police Initiatives and Documents’, UNSW Comparative Youth Penality Project (Website, 26 October 2010) <>.

[44] Western Australia Department of Corrective Services (n 27) 1-2.

[45] OICS 2015 (n 35) 1.6.

[46] ‘Minister Official Opens TAG’s Wiluna Remote Community School’, The Architecture Group (Website, 30 April 2008) <> .

[47] Grant and Hobbs (n 27). See Martyn Hook, 'Translating Culture: Framing Indigenous Knowledge Through Architecture' (2019) 89(3) Architectural Design 108.

[48] OICS 2015 (n 35) 1.7; Government of Western Australia, '$150 million for new West Kimberley Regional Prison' (published 19 December 2008) <$150million-for-new-West-Kimberley-Regional-Prison.aspx>.

[49] Western Australia Department of Corrective Services (n 27) 1-2.

[50] OICS 2020 (N 26) (n 26) ix.

[51] Richard Midford, 'Imprisonment: The Aboriginal Experience in Western Australia' (1988) 21 Australia New Zealand Journal of Criminology 168, 169-170.

[52] Ibid.

[53] Grant and Hobbs (n 27).

[54] Midford (n 51) 169-170.

[55] Ibid 170.

[56] Ibid.

[57] Australian Institute of Health and Welfare, Adult Prisoners (Website, 2021) <>.

[58] Kimberley Community Legal Services, ‘Submission to the Australian Law Reform Commission Inquiry into Incarceration Rates of Aboriginal and Torres Strait Islander Peoples’ (September 2017) 8-9.

[59] Ibid.

[60] ‘Snapshot of Western Australia,’ Australian Bureau of Statistics (Website, published 28 June 2021).

[61] Department of Justice Corrective Services, Quarterly Statistics – Custodial (Adult Prisoner) 2020 – Quarter 3 (8 April 2022).

[62] Australian Institute of Health and Welfare (n 57).

[63] Department of Justice Corrective Services (n 61).

[64] Grant and Hobbs (n 27).

[65] See Juan M Tauri and Ngati Porou, 'Criminal Justice as a Colonial Project in Settler Colonialism' (2014) 8(1) African Journal of Criminology and Justice Studies 20, 21.

[66] Zoe Staines and Renee Zanhow, 'Exploring the Politics of Strain: Crime and Welfare in Remote Indigenous Australia' (2021) 56(3) Social Policy and Administration 452, 455.

[67] Ibid 454; see also L Wacquant, Punishing the Poor (Duke University Press, 2009).

[68] Ibid.

[69] Angela Davis and Chris Cunneen ‘Masked Racism: Reflections on the Prison Industrial Complex; and Introduction: Race, Prison and Politics in Australia’ [2000] IndigLawB 12; (2000) 4(27) Indigenous Law Bulletin 4, 6.

[70] F Markham, ‘COVID-19 and the Indigenous Income Crisis’ in F Markham et al (eds), Indigenous Australians and the COVID-19 Crisis: Perspectives on Public Policy (ANU Press, 2020) 6-9 cited in Staines and Zanhow (n 66) 456-7.

[71] Markham (n 70) 6-9 cited in Staines and Zanhow (n 66) 456-7.

[72] House of Representatives Standing Committee on Indigenous Affairs, Parliament of Australia, Inquiry into Food Pricing and Food Security in Remote Indigenous Communities (Final Report, November 2020).

[73] See e.g. Chris Cunneen and Juan Tauri, Indigenous Criminology (Bristol Policy Press, 2016), Staines and Zanhow (n 66) and Zoe Staines and Kiah Smith, ‘Workfare and Food in Remote Australia: ‘I Haven’t Eaten...I’m Really at the End...’ (2022) 16(1) Critical Policy Studies 36.

[74] Staines and Smith (n 73).

[75] Staines and Zanhow (n 66) 461-2.

[76] M Tauri Porou (n 62) 25-26; Watson (n 17) 35; see also Michel Foucault, Displine and Punish: The Birth of the Prison (Penguin, 2020).

[77] OICS 2020 (n 26) 5.

[78] Ibid.

[79] Ibid 12.

[80] Ibid.

[81] OICS 2015 (n 35) 1.27.

[82] OICS 2020 (n 26) 6. See also OICS 2015 (n 35) 5.16-5.23.

[83] OICS 2020 (n 26) 35.

[84] Ibid 5.

[85] Ibid.

[86] Ibid 26.

[87] Ibid 7.

[88] Molnar et al (n 29).

[89] OICS 2020 (n 26) 14-15.

[90] Ibid.

[91] Ibid; see Royal Commission in Aboriginal Deaths in Custody (Final Report, April 1991) recommendation 145.

[92] OICS 2020 (n 26) 6.

[93] Ibid 35.

[94] Molnar et al 440-441.

[95] OICS 2020 (n 26) 8.

[96] Ibid.

[97] Ibid.

[98] Ibid 17-18.

[99] Ibid.

[100] Ibid.

[101] Ibid 18.

[102] Matt Bamford, ‘Women in Kimberley Prison Face Discrimination and Miss Crucial Rehabilitation, Major Report Finds,’ ABC News (Online, 23 April 2021) <>.

[103] OICS 2020 (n 26) 37.

[104] Office of the Inspector of Custodial Services, ‘2017 Inspection of West Kimberley Regional Prison’ (Report 113, October) 46 cited in OICS 2020 (n 26) 26.

[105] OICS 2020 (n 26) 26.

[106] Ibid.

[107] Tauri and Porou (n 65) 22.

[108] UNSW Comparative Youth Penality Project (n 41) citing Kimberley Aboriginal Reference Group, Initial Recommendations Toward the Kimberley Custodial Plan - Stage One Report (October 2005).

[109] Monique Fontaine (ed), New Legend: A Story of Law and Culture and the Fight for Self-Determination in the West Kimberley (Kimberley Aboriginal Law and Culture Centre, 2006) 20, 37.

[110] Ibid.

[111] See Kathryn Thorburn and Melissa Marshall, ‘The Yiriman Project in the Western Kimberley: An Example of Justice Reinvestment?’, Australian Institute of Criminology Indigenous Justice Clearinghouse (Current Initiatives Paper, 5 July 2017) 1-2.

[112] Ibid.

[113] Ibid.

[114] Harry Blagg and Giulietta Valuri, 'Aboriginal Community Patrols in Australia: Self-Policing, Self-Determination and Security' (2004) 14(1) An International Journal of Research and Policy 11.

[115] Ibid, 322.

[116] Shiloh Payne et al, ‘Prime Minister Proposes Draft Referendum Question on Indigenous Voice to Parliament – As it Happened,’ ABC News (Online, 30 July 2022).

[117] See Uluru Statement from the Heart (National Constitutional Convention, 26 May 2017).

[118] See UNDRIP (10); for critical discussion of article 46(1) see Watson (n 19).

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