This text incorporates data on deaths in custody and the violence skilled by First Nations folks of their encounters with the Australian carceral system. It additionally incorporates references to and the names of people who find themselves now deceased.

Early in Russell Marks’ e book, Black Lives, White Regulation, he tells us that whereas he was writing it, not less than 37 First Nations folks died in Australia’s legal justice system.

Throughout the time I’ve been scripting this evaluate, we’ve got listened to the coroner’s inquiry into the killing of Warlpiri teenager Kumanjayi Walker and seen (once more) the racism and violence of police: from informal textual content messages commending bodily assaults, to the usage of lethal power in opposition to a younger man, when there have been a number of different choices obtainable.

After which got here the dying of Noongar 15-year-old Cassius Turvey who was fatally attacked in Perth final month. The fast police response was to evade claims of racism in his alleged homicide. “It could be a case of being within the improper place on the improper time,” speculated Western Australia’s police commissioner, saying he was “not working on any ideas of racism or motivation at this level”.

Overview: Black Lives, White Regulation: Locked Up and Locked Out in Australia – Russell Marks (La Trobe College Press)

book cover (yellow with text): Black Lives, White Law: Locked Up and Locked Out in Australia - by Russell Marks

We proceed to bear witness to the visceral hatred of Aboriginal folks by too many non-Aboriginal folks – and the sheer indifference of too many others. The collective trauma borne by First Nations households and communities all through Australia is palpable.

Russell Marks isn’t a First Nations individual, and nor am I. Marks is, amongst different issues, a legal defence lawyer who has labored for Aboriginal authorized providers within the Northern Territory and Victoria. I’ve been writing on policing in Aboriginal communities for the reason that Nineteen Eighties. Our experiences and understanding of the world will not be these of Aboriginal people, households and communities, whose lives are closely impacted by racism and violence – each inside the legal authorized system and with out. However we will contribute to the battle for justice. And Marks’ e book does that.

Learn extra:
The Kumanjayi Walker homicide case echoes a protracted historical past of police violence in opposition to First Nations folks

Nothing to do with justice

Justice. If Black Lives, White Regulation does nothing extra, it exhibits the hollowness of a set of establishments and practices known as the “legal justice system”. In too many instances, these collective establishments of policing, courts and prisons have little to do with justice, however an amazing deal to do with perpetrating and legitimating profound injustice. My most well-liked time period is “the legal authorized system” – as a result of this wording doesn’t faux these establishments provide justice.

Many Australians would possibly want to see Aboriginal deaths in custody and the appalling charges of Aboriginal youth and grownup imprisonment as the results of First Nations folks’s failings. However Marks’ e book goals to grasp the modern state of affairs by turning the gaze again onto Australia’s legal authorized system.

It does so by way of a collection of chapters that discover how the legal authorized system disempowers, criminalises and incarcerates Aboriginal folks. The chapters span the historic roots of colonialism and settler regulation, to the modern query of what must be achieved to alter our establishments of policing, courts and prisons.

Leetona Dungay, the mom of the late David Dungay Jr, publicizes she’s going to go to the United Nations to carry the federal and NSW governments to account for his or her failure to cease First Nations deaths in custody.
Dan Himbrechts/AAP

Throughout the interval from the preliminary invasion of Australia by way of the nineteenth century, “the sheer brutality of the frontier violence by the invading British” was troublesome to consider. And, like as we speak, the idea of justice itself “meant remarkably various things to a Supreme Court docket Choose in a capital metropolis [compared to] an Indigenous one who had survived a bloodbath of their household and neighborhood”.

The denial of Aboriginal experiences of colonisation has been compounded by a choose studying of the colonial actuality: that the authorized story of Australia was one among British settlement, and Aboriginal folks had been neither recognised as sovereign, nor permitted to train their very own legal guidelines.

Black Lives, White Regulation follows a reasonably well-trodden historic path of settler-colonial interventions into Aboriginal life. It consists of the more moderen historical past of the Royal Fee into Aboriginal Deaths in Custody, and the Northern Territory Intervention and past. And it traces the expansion in incarceration charges from the late Nineteen Eighties onwards.

Australian governments have usually rhetorically dedicated to decreasing Aboriginal imprisonment. However in actual phrases, over the previous few many years, imprisonment normally has elevated, because of punitive legal guidelines and insurance policies: a 130% enhance (measured from 1985 to 2018). For First Nations folks, imprisonment charges have elevated drastically – they’ve greater than doubled throughout that very same interval.

They usually’re now proportionally greater than Black American imprisonment charges. In 2007, the Black American incarceration price in america was 75% greater than the Indigenous price in Australia. However ten years later, in 2017, Australia’s Indigenous incarceration price for the primary time exceeded the Black American price.

Marks discusses the restrictions of imprisonment as against the law management technique. He notes, “it’s an awfully costly and inefficient manner of controlling crime”. I’d have most well-liked to see this argument pushed past the pragmatic rationale of cash and inefficiency, to query whether or not locking kids, younger folks and adults in cages is ever justified.

A Melbourne rally on 18 June 2022: a nationwide day of motion calling for justice for Aboriginal deaths in custody.
Diego Fedele/AAP

Learn extra:
Friday essay: ‘not for me’ – Amy Thunig on the stigma of getting a dad in ‘lock-up’, and the embrace of Indigenous academia

Carceral feminism and youth imprisonment

Within the closing chapters, Marks explores a number of the main points within the criminalisation of First Nations folks. He turns his consideration to the matter of carceral feminism – that’s, the method to fixing the issue of violence in opposition to ladies by way of an rising reliance on the criminalisation and incarceration of males.

Examples of carceral feminism embody rising penalties for home violence orders (DVOs), the criminalisation of coercive management, and present solutions of “ladies solely” staffed police stations.

Marks argues the legal authorized system is incapable of fixing the issue of violence in opposition to First Nations ladies for numerous causes, and its present method has resulted within the elevated imprisonment of each women and men. He cites figures from Queensland that present two-thirds of ladies sentenced to jail for breaches of home violence orders are Indigenous.

Marks additionally takes goal on the youth authorized system, which continues to incarcerate and brutalise kids – however notably First Nations kids, who comprised round 50% of all kids locked up on the time he was writing the e book.

He attracts on the Royal Fee into the Safety and Detention of Youngsters within the Northern Territory to grasp the violence and hurt attributable to the juvenile carceral system, which traumatises kids who are sometimes already traumatised (earlier than they had been imprisoned). That is exemplified by the experiences of Dylan Voller and others in Darwin’s Don Dale Youth Detention Centre – together with violent assaults by workers, teargassing, and solitary confinement.

Marks additionally makes use of the NT royal fee to exhibit the federal government’s failure to behave on suggestions to treatment clearly recognized issues. It continues to incarcerate younger folks in substandard situations, and fails to noticeably contemplate choices that would considerably cut back youth imprisonment.

Learn extra:
Carceral feminism and coercive management: when Indigenous ladies aren’t seen as superb victims, witnesses or ladies

Neighborhood security

The e book explores what First Nations persons are doing within the battle to make sure security inside their communities. These embody neighborhood (or “evening”) patrols, regulation and justice teams, neighborhood justice teams and numerous community-generated approaches – from justice reinvestment to particular person applications for serving to younger folks in the neighborhood. And there’s the event of Aboriginal sentencing courts (such because the Murri court docket and Koori court docket), the place First Nations folks play a job in advising the court docket on legal issues.

These initiatives have obtained inconsistent help (at greatest) from the state, and are sometimes undermined by the scepticism of police, magistrates and different state officers. Marks questions the facility of those courts to alter the dominant Western authorized system, when the regulation finally enforced continues to be the regulation of the settler state.

But Indigenous folks proceed to struggle for his or her proper to manage neighborhood security. After the deadly taking pictures by police of Kumanjayi Walker, the elders of Yuendumu launched a press release demanding larger energy to make selections. They unambiguously said that their evening patrol and neighborhood police ought to be on the forefront of guaranteeing their neighborhood’s wellbeing.

Warlpiri Elder from Yuendumu, Ned Jampijinpa Hargraves, speaks to the media outdoors the Northern Territory Supreme Court docket.
Aaron Bunch/AAP

They demanded Warlpiri regulation be recognised and revered. They demanded a job in assessing and evaluating each police officer who involves work of their neighborhood. They usually demanded police of their neighborhood not be armed with weapons and different deadly weapons.

These are radical calls for, however they’re fully in keeping with the localised management over policing that First Nations peoples have insisted on for many years. After Rolfe’s acquittal for the homicide of Kumanjayi Walker, Ned Tjampitjinpa Hargraves, a Yuendumu Elder and Lawman, said:

The court docket didn’t take motion, so we have to take motion on the bottom in our communities to guard ourselves … We now have waited for too lengthy.

Aboriginal justice

There’s some dialogue of Aboriginal justice agreements within the e book, though it’s comparatively brief. A extra nuanced dialogue of their position would have been helpful. It’s particularly related for the Northern Territory, the place the present Aboriginal Justice Settlement (2021-2027) is being carried out. (I notice this notably within the context of Hargraves’ feedback, and the Yuendumu calls for.)

One of many core ideas underpinning the settlement is a dedication to native decision-making on a spread of issues regarding regulation and justice. Little question it is going to be a battle for communities to make sure this precept is acted on in observe.

The end result of First Nations struggles for recognition and autonomy from the settler-colonial state will not be predetermined – and the top result’s removed from sure. The settler-colonial state isn’t a completed product.

The battle between Indigenous governance and the settler state could lead to new authorized and administrative areas: neither fully decolonised nor fully colonial, however reflecting a time limit. Incomplete in themselves, in an everlasting political and historic battle.

Within the conclusion of Black Lives, White Regulation, Marks acknowledges the e book isn’t about options; it’s about figuring out the issues. This e book actually does that, comprehensively.

Marks doesn’t faux to have all of the solutions – not like so many whitefellas earlier than him, all too anxious to push their very own barrows of insurance policies and applications. And there are a number of alternative ways the long run could unfold.

What’s clear is that mass criminalisation and incarceration isn’t justice and it isn’t an answer for First Nations folks. Although it seems a handy manner for the settler state to keep away from coming to phrases with its personal historical past of dispossession, genocide and racism.

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