Mandatory sentencing

To create a balanced picture of indigenous rates of incarceration, we need to allow for Mandatory Sentencing – the three strikes laws – passed by the Northern Territory and then later in Western Australia.

Before the Northern Territory law was repealed, there was a public outcry when Jamie Wurramurra went to prison for stealing biscuits and cordial.

That indigenous incarceration rates are highest in the states where the Aboriginal population is highest should be no surprise, nor should it be a surprise that where a three strikes law is in force, incarceration rates will naturally go through the roof.

Law and Order is not just the name of a successful TV series. It’s one sure vote-catching issue just about anywhere in the western world. As a nation, we need to decide whether we want to trust our judicial system or not, because a three strikes law says we do not.

Are indigenous people imprisoned in disproportionate numbers because they deserve it, or  because they are unfairly targeted? One obstacle to answering this question is the political correctness that prevents anyone from recording or reporting crimes based on the race or ethnicity of the offender, the race or ethnicity of the victim, and the number of repeat offences by individuals in each case.

Superficially, one might assume that the number in prison matches the number of criminals, but it is impossible to penetrate the fog without more details. Keeping these details hidden away simply makes it easier for the ‘get tough’ brigade to make accusations without having to offer proof, and it makes it harder for those who are slandered to defend themselves.

One very open secret I cannot therefore prove is that Aboriginals harm each other more than they harm anyone else. That they harm each other so often is a tragedy, but it certainly doesn’t make Aboriginals a threat to whitefellas.

Sentencing and Circle Courts

Sentencing in Australia is lenient compared to some other countries, with the emphasis often placed on the possibility of rehabilitation, rather than just punishment for the crime, or protecting the public from the criminal.

Since the late 1990s, changes have been made in mainland states [including the Northern Territory] in the way the law deals with many Aboriginals charged with breaking a law. The aims of these changes are a reduction in Aboriginal distrust of the law, a reduction in the disproportionate numbers of indigenous peoples finding themselves in custody, and providing outcomes which are more likely to prevent re-offending,

In urban areas there are special courts, the first of these being the Nunga Courts in South Australia, to which more courts have since been added. There are Koori Courts in Victoria, Circle Courts in New South Wales, and a Murri Court in Brisbane. There is a further court in Rockhampton  treating Aboriginal people, Torres Strait Islanders and South Sea Islanders all separately by racial or ethnic identity. A Circle Court has also been established in the Pilbara region of Western Australia.

In addition to these new urban courts, new approaches are used when circuit courts travel to remote areas.

Each state has its own rules regarding, amongst other things, what crimes these special courts may deal with and how the local Aboriginal community is involved. The Queensland sentencing act requires Magistrates and Judges to take into account the views of community members when passing sentences.

In some areas of the law, such as sexual offences, indigenous people may prefer not to participate in sentencing.

In the Northern Territory several laws require Judges to take account of payback punishments when sentencing. Australian law does not authorise or encourage traditional payback, but if someone is likely to be speared then they certainly don’t deserve the same whitefella punishment a whitefella would get for the same crime. For this reason, the judiciary is required to seek advice from the local community.

In some courts, the local community can help clarify exactly what happened as well as help decide on an appropriate punishment, and monitor the offender’s progress in terms of rehabilitation.

Side effects of this approach might be reinforcing the authority of elders where this seems to be breaking down, and strengthening a sense of community.

Help

Because so many Aboriginals live in remote areas, are isolated by language and cultural barriers, and are more likely to rely on legal aid, they are further disadvantaged when a solicitor is appointed to help.

Contact with clients will be minimal because of travel and distances involved, and Aboriginals are more likely to meet with a different solicitor at each stage of the legal process; when they are charged and applying for bail, at a hearing, and at a sentencing [assuming they do not apply for appeal].

Interpreters

There is a large pool of accredited interpreters in Australia for the most common European or Asian languages, but there are not even courses available for many Aboriginal languages. 

To be effective, an interpreter needs to understand a language, its associated culture and shades of meaning, as well as being alert to the possibility of an individual misunderstanding. An interpreter must not only understand legal concepts and be familiar with court procedures, he/she must also understand medical and other matters which might be raised in court.

Because some indigenous languages might only be the first language of 30 or 40 people, it would be great to have members of that language group as interpreters, not just for the benefit to the community but also to preserve the language. In a court room, however, that person cannot be someone who stands in a taboo relationship to the people involved in the case, though the probability they are also involved in what happened or have a conflict of interest is also rather high.

Other aspects of communication

Traditional concepts – along with whitefella assumptions – befuddle successful communication. Some relate to a difference in the way time and quantities are processed and classified as opposed to the western way of dealing with them. 

Gestures are sometimes used in place of words, and there are some things Aboriginals are traditionally not permitted to speak about.

In a court room, where questioning might go on forever to clarify a single point, someone might use a word which several meanings. The western desert language Ngaanyatjarra, like many others, has had to develop new words to describe new, western concepts. The word town, which has become tawunpa, might mean settlement, city, town or house.

Aboriginals might use words like hit or kill interchangeably.

It’s not hard to see how, in the remote past, on the rare occasions Aboriginals were given a chance to seek justice, justice was not always done. What many whitefellas are simply unaware of is that, even today, there are many Aboriginals for whom whitefella language is still as incomprehensible as the law.

Gratuitous Concurrence

Just one of the barriers to effective communication is a phenomenon known as:

Gratuitous Concurrence

Quite simply, this is a tendency for automatic agreement. It’s not necessarily from fear of authority; often it’s a cultural signal showing a person is ready to engage in a conversation. Two examples might help:

1. An Aboriginal man was in court to testify as a witness. He was not charged with anything, but when he was being sworn in he pleaded guilty.

2. A barrister asked a series of questions to which a witness kept replying yes.

Barrister: Do you understand you don’t have to answer my question?

Witness: Yes

Barrister: Now, do you have to tell me the story?

Witness: Yes

The judge noticed that several Aboriginals sitting in the public area of the court were also all mouthing the word yes and nodding along with the witness.

Aboriginal English

In 1992 Dr Diana Eades’ published a book called Aboriginal English and the Law, and shortly after that the Queensland Attorney-General published a more straightforward guide called Aboriginal English in the Courts. This guide is very easy and very interesting reading.

Eades says Aboriginal English did not develop from pidgin English, but from the way English was Aboriginalised as it was being learnt, in terms of grammar, accent and traditional ways of speaking.

For a very long time, white people might have heard Aboriginals speaking what sounded like English and misinterpreted what was actually a distinct language, differing from English in very systematic ways. For a very long time, Aboriginals have been disadvantaged, legally and in other ways, by this misunderstanding.

Deaths in custody

The 1991 Royal Commission into Aboriginal deaths in custody found that Aboriginal prisoners were not dying at a greater rate than whitefella prisoners. The unfortunate truth it did find is that Aboriginals are jailed at a disproportionate rate and that is how a disproportionate number out of the total population are dying in prisons.

We are not treating Aboriginals worse when they are in custody, we are simply taking more into custody more often.

The Commission’s final report contained 339 recommendations, one of which was comprehensive training for people in the judicial system. The training would cover contemporary society, customs and traditions, as well as emphasising historical and social causes of Aboriginal disadvantage, and looking at the nature of relations between Aboriginals and whitefellas.

Following this recommendation, the Australian Institute of Judicial Administration Inc [AIJAI] produced an Aboriginal Benchbook designed to be used in Western Australia. This was intended as a template for other jurisdictions, and some other states have since produced similar handbooks. In these, the topics mentioned in recommendation 339 are well covered, in a legal context and complete with a million references to statute and case law.

Wrong, wrong, wrong, wrong, wrong

The most common result, initially, was that thousands of people were living in unproductive camps on the fringes of what little town there was, without ready access to any sort of pre-established social service payments outlet. They often had no access to a balanced diet or medical attention; there was not enough room to live without toilets; they were suddenly living close to people with whom they had a taboo relationship; they had no housing. 

Without access to country, life could have no meaning. Being unable to fulfil obligations to country was akin to every refugee’s dilemma on leaving family behind; never knowing their fate and having to live with guilt. 

But this was worse: Aboriginals were in Limbo, with no hope of building a future for their children. These were not the consequences people must bear when they make a bad choice, for they were given no choice. Life was effectively a prison without walls.

For a few, this situation was a steep learning curve they would survive. People worked together to organise decent food, or to fight for land rights or to lobby for some form of housing. For too many, the damage would be permanent, and has passed from one generation to the next.

Government responses

There was no coordinated government response. Predictably, the federal government [welfare payments], the state government [allocating reserves or town camps, providing education and health and welfare services] and local government [there's a whole in the road] ran around in circles doing [or not doing] their own thing without telling each other what they were doing or not doing.

This was an especially big problem in WA, where the government had long relied on pastoralists to do as much or as little they would for Aboriginals; where the government had no practical experience of doing anything for Aboriginals themselves.

Given the official assumption of most policy makers was that Aboriginals cannot cope with a white world, they were appallingly indifferent to the plight of these people who had just been “thrown into the pool to sink or swim”.

Station Life – Before the Equal Wages Case

The movie Australia provides a reasonable picture of what these stations were once like. During World War II, there was a great trek with cattle to prevent the Japanese taking them, but it travelled from north-western Australia in a southerly direction.

A 1946 movie The Overlanders, also based on this journey, starred Chips Rafferty, Australia’s answer to John Wayne. 

You can see some clips from this movie on a National Film and Sound Archive website. Not so schmaltzy as the movie Australia, the Overlanders shows that Aboriginal stockmen were a vital part of the whole industry.

You can also take a peek at some clips from another movie, We of the Never Never, made in 1982. It was based on a novelised autobiography by Jeanne Gunn which, in keeping with the times, was published under her husband’s name Mrs Aeneas Gunn.

Jeanne only spent a year at Elsey Station (number 4 on the map above) before her husband died, but she provides a contemporary account of life on a station at the close of the 19^thCentury. This story looks at the question of whether whitefella women had a place in the outback, and at the relationships between Aboriginals and whitefellas.  

The book Kings in Grass Castles by Mary Durack (Patrick’s niece) is another classic story of Australia’s pastoral industry.

Like government records and other archival material, personal stories can tell us something about early Australia, but both sources should be approached with an open mind. Daisy Bates' book The Passing of the Aborigines – there’s that old vanishing race story again – was on one of my reading lists at school, but it has since emerged that Daisy was either a pathological liar or something of a fruitcake, (possibly both).

The families I came from all settled in north eastern Victoria around 1840-1850, which was Daung Wurrung country. There are many stories of my own family that have been passed down to me, but none of them refer to Aboriginals. In this case, silence probably speaks volumes.

Stolen Wages

In every state, there was an arrangement of some sort to ensure Aboriginal earnings were kept in trust. Many half-castes from settlements, schools or missions were required to leave and start working at 13 or 14, as domestics, farm hands or in ‘apprenticeships’.

A (federal government) senate committee inquired into the nature and extent of trust fund or other payments which had not been given to the people who earned them. 

The final report, Unfinished business: Indigenous stolen wages was released in December 2006. It contains an exhaustive outline of the arrangements under various state Protection Acts, and responses from state governments with their estimates of numbers of people, amounts, lost records and so on.

Before the report was released, the New South Wales government had already established an Aboriginal Trust Fund Repayment Scheme. Payments under this scheme were expected to be finalised in 2010.

The Queensland Government later established a stolen wages and savings (reparations scheme); this has been criticised as mean and inadequate, especially compared to the NSW scheme.

Remaining states and the Federal Government (who administered the Northern Territory from 1912) have been dragging their feet.

Sometimes an apology simply isn’t good enough.

Money matters

White station hands did not need cash. Quite often, they would get paid 6 months’ wages at a time, go to the nearest big town and blow the lot. Nonetheless, they understood the nature and purpose of money.

Never handling cash, Aboriginals developed little or no understanding of how money worked, how to budget, or the possibility of saving. Whatever they were given or took from the station store was charged to their account, at whatever price the station owner wanted to charge. Like many children exploited in third world countries today, Aboriginals might suddenly learn they were actually in debt: The longer they kept working, the bigger the debt.

Naturally, any Aboriginal could go to the store when they wanted something and just ‘book it up’ to someone else who was working on the station, with no idea of the consequences.

Nothing in this feudal system helped Aboriginals become aware of the idea of saving (or deferred gratification), and it preyed on the traditional rule that what belongs to one belongs to everybody.

Laws affecting Aboriginals on Stations

Western Australia

Before it was granted self-government, the state constitution required a portion of money be set aside from each budget for Aboriginal Affairs. A few years after self-government, this was removed, and the Protection Act re-written.

‘Natives” were not to leave their place of “employment” without written permission of their employer or a police officer. (i.e. Station owners could get away with brutality). 

It was also illegal for any white person to speak to a congregation of 2 or more natives with the intention of encouraging them to leave or cause some other trouble.

Northern Territory

A few years after the federal government took control of the Territory, station owners needed a licence to hire Aboriginals, and were required to pay them up to five shillings a week. 
To avoid this obligation, station owners could show on an annual return how many (unproductive) dependants were living on the station. Most station owners received subsidies based on how many dependants they said they were looking after.

Queensland

A portion of all wages was to be lodged with the Queensland government for deposit into a trust fund. When Aboriginals wrote asking to withdraw funds to buy something, they were usually told they didn’t need or couldn’t have what they were planning to buy.

Another Feudal System

As pastoralists moved further into remote areas in the second half of the 19^th Century, they naturally moved on to Aboriginal land. Unlike farmers with small holdings close to cities, station owners or managers discovered that Aboriginals could be very useful. What evolved in these areas was a new type of feudal system for providing answers to the economic questions of what to produce, how to produce it, and how to share what was produced.

Benefits to Aboriginals of Staying on Pastoral Leases

• Less likely to be shot if they could be watched;
• Able to stay on their own country;
• Freedom to tend to spiritual obligations;
• Freedom to retain most of their culture and language;
• Able to recommend alternatives if a sacred site was at risk of being disturbed;
• Elderly, children or relatives passing through had somewhere to stay;
• (Depending on the morals of station managers) access to food, education, clothing and medical help;
• A sense of purpose and achievement when working on the station.

Benefits to Station Owners or Managers;

• Less likely to lose stock to uncontrolled hunting parties;
• Access to knowledge of land, seasons, water sources;
• Cheap labour when it was most needed;
• Aboriginals could make up for the lack of fencing by monitoring stock movements over country they knew.

Police/Protectors

• Reliant on Station owners/Managers for rations or meat
• “good behaviour” of Aboriginals kept Station owners happy
• Having both parties in one place made it easier for Protectors, who were working on their own.

The success of this arrangement – of mutually interdependent obligations – varied depending on places Aboriginals could go to if unhappy, how desperate the Station Owners were for help, and the values of the Station Owners and/or their white station hands.

Aboriginals took to station work as if born to it. (Well, the men perhaps, I don’t think I would say the same for “domestic” staff, or women who were often used/abused).

Naturally, there were downsides to this arrangement.

The Pastoral Industry. Size is Everything

The north-west corner of Australia, near the WA /NT border was the home of Victoria River Downs. While huge-mungous when first established, it wasn’t long before the original partners had to hand Victoria River Downs back to their bankers; parts of the station were sold, but it still exists today.

Largest Ranch in USA (King Ranch, Texas)	825,000 acres
Largest Station in Australia today (Anna Creek Station)	6,000,000 acres
Largest ever in Australia (Victoria River Downs)	10,255,000acres

Different sources provide different figures setting out the size of Australian properties but I think the confusion, in part, is due to the difficulties involved in converting square miles to square kilometres, but most sources have the same figures when they talk in terms of acres. Apparently, the King Ranch in Texas is about the size of Rhode Island.

 Recently, after 10 years of drought, Anna Creek was only running 3,000 head of cattle, or one beast per 2,000 acres. The number of beasts per acre held on any property will depend on the amount and type of feed available – the recommended rate for central Kansas in the U.S.A. is 1 for every 3 acres.

It had been believed, for a long time, that a great portion of Australia was wasteland and therefore unsellable, but when pastoralists started to take up the land in spite of its poor condition, the government was able to derive some income by charging for pastoral leases.

The Pastoral Industry. Early Days.

James “Hungry Jim’ Tyson (1819-1898). 

Establishing their first successful grazing venture on a half million acre property in south-central New South Wales, Jim and his brother began building a cattle empire just in time for the Victorian gold rush of the 1850s. When the gold rush started, he moved his cattle south and set up business as a butcher and, with a knack for good timing, sold his butchery just before the gold rush collapsed.

The first of the “cattle kings”, Jim eventually owned a string of stations (ranches) ranging from Queensland to Victoria. Making good use of ‘the long paddock’, as the overland stock routes were called, he not only sold beasts to the Sydney and Brisbane markets, but also used a Victorian property as a ‘feedlot’, fattening beasts before sending them to market.

Hungry Jim sank bores on his properties and, despite his legendary frugality, spent money making sure he always had water. He did so well, at one stage he was able to lend financial support to the failing state of Queensland.

A great part of his business involved moving stock from one state to another, his largest property straddling the Queensland / New South Wales border. It should be no surprise he was an early supporter of the Constitutional Movement which aimed, amongst other things, to guarantee free trade between the states.

Patrick Durack (1834-1898)

Initially claiming thousands of acres in south west Queensland, Durack stocked that land and sold it to settlers moving in behind him. He later took more than two years to move over 7,000 head of cattle 4,800 kms (3,000 miles) to the Kimberley region of Western Australia.

Sir Sidney Kidman (1857-1935)

Kidman was another of the Cattle Kings: Setting out to drought-proof his properties, instead of sinking bores he simply bought more properties.

While Hungry Jim had developed the industry in the eastern states, Kidman concentrated on central and southern Australia. He made a great deal of his fortune supplying meat in mining areas including Broken Hill. At one stage Sir Sid owned about 3% of the Australian mainland, and his company still owns what is the largest station in Australia today, the Anna Creek Station.

Nat Buchanan 1(826-1901)

Another man who was important to the pastoral industry was the Irish born Nat Buchanan. A failure as a property owner, Nat spent the greater part of his life droving stock across the top end of Australia. 

1 Hungry Jim; 2 Sidney Kidman; 3 Victoria River Downs; 4 Elsey Station