THIS Essay was done for criminology and sets out to explain the various reasons for the incredibly high rate of aboriginal crime statistics. In particular, it looks into the role of the criminal justice system.

�How can we possibly justify a society and a criminal justice system which seems to condemn a high proportion of the descendants of the original inhabitants of this continent to a life of recurring imprisonment, with all the anti-social consequences which that entails.� The Hon. Justice Michael Kirby (1)

INTRODUCTION

The invasion of Australia by the British �setters� was the beginning of the end of the unique aboriginal culture, legal system and spirituality. From this moment, a downward spiral into drunkenness, sickness and consequently �crime� began to appear. Added to this, a deep distrust of our law enforcement agencies (many of whom were directly responsible in the killing of Aborigines) has meant that there is an uneasy relationship with our system of law. The Government too, and subsequent inaction by many Australian citizens, has not helped. How can an Aborigine accept the legitimacy of a legal system, when that very system, discriminated and continues to discriminate against them?

This research project will mainly be devoted to proposing solutions to the problems of over representation of the Aboriginal and Torres Strait Islander people in crime figures, particularly once the �offenders� are placed in custody, resulting in suicide. The rates of Deaths in Custody in this country for Aboriginal people are nothing short of shameful, and have increased steadily since the Royal Commission into Aboriginal and Torres Strait Islander people was concluded. Solutions will be mainly concerned with the Criminal Justice system�s operation as well as the fundamental issue of allowing the Aboriginal people their right to autonomy and respect for their land. Before I delve into what I (well, everything I think should be done has been covered by some author... they really leave me with little room for originality without plagiarism!) think are some solutions, I will briefly explore the problems of Aboriginal crime and custody issues.

THE PROBLEM

THE FACTS

The figures below show quite clearly, that there is a severe over representation of indigenous people in crime and custody figures. From arrest to sentencing, Aborigines are over represented. How can anyone possibly say that there is nothing wrong or that it is the fault of the indigenous people themselves? If it were a minor over representation, perhaps. But the figures indicate a massive and tragic over representation that implies a very real discrimination taking place in the justice system.

A) CUSTODY RATES PER 100000

1988: 3539 Over representation: 27 times others 1995: 2228 Over representation: 27 times others

B) NORTHERN TERRITORY COURT STATISTICS (2)

June 1993 to January 1994

Persons charged with assault: 333 Those Imprisoned: 169 Percentage: 57% Percentage of Non Aboriginals: 27.3% Over Representation: Aborigines 2.8 times more likely to be sentenced to prison than other Australians for Assault offences.

Driving Offences: 688 Those Imprisoned: 304 Percentage imprisoned: 44.2% Percentage of Non Aboriginals: 11.2% Over Representation: Aborigines are 6.3 times more likely to be sentenced to prison than other Australians for Driving Offences.

C) How many more times likely an Aboriginal/Torres Strait Islander is going to be charged for these various offences (3):

Homicide: 11.6 Assaults: 35.5 Sexual Offences: 16.8 Robbery/Extortion: 15.0 Fraud/Misrepresentation: 4.2 Drug Offences: 1.3 Justice procedures: 16.9 Other Against Good Order: 9.5 Driving Offences: 21.3 License, Registration: 26.1 Other Traffic Offences: 39.1

The report notes: �It should be pointed out that significant offence-specific decreases in the over-representation of Indigenous people in prisons since 1988 have been in the categories �other offences against good order� (street disorder, public drunkenness) and �justice procedures.� (Breaches of court orders such as probation, community services, etc.)�

D) Over Representation of Aborigines in the Prison System (4) 1993:

Males: 13.9 times greater than others Females: 16.0

NSW: 10.7 times greater than other people VIC: 15.2 QLD: 13.5 WA: 21.7 SA: 20.3 TAS: 3.5 NT: 10.8

What is so shocking about the prison figures is that 75.3 per cent of the indigenous people in prison have been in prison previously. This compares with the 56.5 per cent figure of non aborigines (5). This certainly gives meaning to Justice Kirby�s quote at the beginning of this research project.

E) Over Representation in Prison System by Age (6):

17-19 17.5 20-24 12.1 25-29 10.0 30-34 14.0 35-49 8.0 50+ 5.9

These figures disturb me particularly, because they prove that Aborigines are more likely to encounter jail younger than other Australians. What could also be said is that now, younger Aboriginals are being targeted more than others. The 17-19 age group over representation seems to indicate this. Also, maybe the Aboriginal youths put in the prison system are there on more minor offences. This would explain the drop off in the over representation rate as the age groups get older.

F) Ratio of indigenous to non indigenous people in prison in various countries (7):

AUSTRALIA: 8.9:1 CANADA: 4.3:1 NEW ZEALAND: 3.0:1

G) Over Representation of Aboriginal and Torres Strait Islander Youths (8):

0-14: 34.0 times 15-16 22.9 17: 18.1 TOTAL: 21.1

H) ABORIGINAL DEATHS IN CUSTODY (9):

1991: Police: 3 Prison: 5 1996: Police: 5 Prison: 13

The Australian Institute of Criminology notes that:

�While the total number of prison deaths has fallen for the second consecutive year from 57 in 1993-1994 to 46 in the current year, deaths of Aboriginal deaths in prison have continued to increase, reaching the highest figure recorded for the 16 year period from 1980.�

The over representation on these figures to non aborigines is astounding but not surprising given the other statistics. While Aboriginal adults represent 1.3% of the population, 25% of custodial deaths were of Aborigines (10). Since Aborigines are over represented in custody figures, it is only natural that they would be over represented in deaths in custody figures. Urgent action needs to be taken to reduce the number of Aborigines in custody.

WHY?

In Chapter Three: �Explanations for Aboriginal and Torres Strait Islander over representation in the criminal justice system�, a number of categories were given as to reasons why there is an over representation. The categories are very similar to criminological characteristics outlined in various articles we have studied (11):

�the impact of colonisation, offending patterns, the impact of policing, legal factors, judicial decision making, environmental and locational factors, cultural differences, socio-economic factors, marginalisation and resistence.�(12)

Many of these factors are considered in the solutions. However I would like to dwell on a number of these causes, perhaps looking particularly at Aboriginal reserves:

The social, economic and environmental condition which determine the Aboriginal life styles in the reserves plays an integral role in explaining Aboriginal criminality. Aboriginal homicide rates are at a level far exceeding their demographic numbers and the main reason for this is their disadvantaged and unequal position in society (13). Wilson explains that the physical conditions on reserves which give rise to the sense of �hopelessness and futility� among Aborigines, have always been struck by the lack of adequate housing, a high density, poor water supply, lack of sanitation facilities, unemployment, inadequate education and inflated food prices making the intake of adequate nutrition very difficult (14) boriginal society� (15):

�From the time the early settlers exchanged alcohol for the sexual favours of black women, to the time money was given for work performed and used to buy drink, drunkenness and alcoholism have enslaved native Australians.�(16)

Of course, the environmental factors of overcrowding, isolation leading to unemployment play a large role in this process of the alcoholic culture (17). The alcoholism plays a very significant part in many of the crimes. As Wilson noted, case after case demonstrates that a:

�combination of heavy drinking, jealousy and assumed �wrongs� suddenly explodes into a crescendo of violence where fist, breadknife or stick become weapons of death.� (18)

SOLUTIONS

1) NATIVE LAND TITLE and SELF DETERMINATION

One main solution to be suggested is that Aborigines must have the right to their land and the right to self determination. The High Court in the MABO decision, led by Brennan J�s lengthy majority decision, recognised equivocally some Aboriginal claims to Crown land. The immediate thought of native title as a possibility in reducing aboriginal over representation in crime and custody figures may seem absurd to some. But what must be understood is that land to the Aborigines was not something one owned. It was an expression of history, of culture, of life. Indeed, �The traditional Aboriginal was... intoxicated by the metaphysics expressed through the physical features of his land� (19). One account of this �inextricable� (20) relationship with the land helps towards an understanding:

�The land is my backbone. I only stand straight, happy, proud and not ashamed about my black colour because I still have land. The land is the art. I can paint, dance, create and sing as my ancestors did before me... I think of the land as the history of my nation. It tells us how we came into being and what system we must live... The law of history says that we must not take land, fight over land, steal land, give land away and so on. My land is mine only because I came in spirit from that land... My land is my foundation. I stand live and perform as long as I have something firm and hard to stand on... We will be the lowest people in the world, because you have broken down my backbone, took away my arts, history and foundation. You have left me with nothing. Without land, I am nothing� (21)

Many may dismiss the above account as too personal. �Perhaps land isn�t so important to Aborigines. Perhaps they should forget about it... what�s gone is gone.� However, in relation to the land values, one can also look at corroboratory evidence. In the MABO decision, Justice Brennan quotes from Captain Pennefather, who on instructions of H.M. Chester, visited the Murray Islands. The captain wrote:

�The natives are very tenacious of their ownership of the land and the island is divided into small properties which have been handed down from father to son from generation to generation, they absolutely refuse to sell their land at any price but rent small portions.�(22)

This is an extraordinary insight into how strong the bond to the land is. That it comes from the mouth of a white man makes it a very valuable piece of information. Of course, there was still that doctrine of �Terra Nulius� that applied in Common Law. This doctrine allowed the settlers to steal the land without even recognising that a culture exist. The High Court, once without the strains of Privy Council doctrine, was able to find that Aborigines could have rights in some of their lands. In the MABO decision, Brennan J writes:

�the doctrines of the common law which depend on the notion that native peoples may be �so low in the scale of social organisation� that it is �idle to impute to such people some shadow of the rights known to our law� can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today�s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.�(23)

And in Section 42:

�The fiction by which the rights and interests of indigenous inhabitants on land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.� (24)

The overturning of this doctrine, coupled with the 1975 anti discrimination act {s.10(1)} which �clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community� (25) made it possible for crown land to be used by the traditional aborigines for the continuation of their customs and traditions on the conditions of their proven heritage and continuing culture (26).

Returning the land to the Aboriginal and Torres Strait Islander people is just the first step towards the conception of a viable solution in curbing the disgraceful over representation. As a basic assumption, it can be said that if Aboriginal existence is not the same without their land, then the giving of that land will go a long way in reducing crime. Indeed, many would argue that to return much of the land to the indigenous people will dramatically decrease the intake of alcohol. This is because alcohol, as Wilson and others explain it, was a means by which the Aborigines could forget their cultural, socio-economic and environmental problems. By having their EXISTENCE returned to them, indigenous Australians will feel proud enough to gradually turn away from the poison that white man has addicted them to. What follows then from Native Title, is a sort of self determination. The High Court seemed to emphasise the linking of the land to the �custom� and �tradition� of Aboriginal life. There is no reason why within an Aboriginal community, disputes cannot be settled internally. Having Native Title to the land will allow this to become a reality because Police will essentially be unable to enter the lands unless they are invited to it, or are exercising the powers of the Crown (27). In chapter eleven of Ivory Scales, Black Australia & the Law, the author of the essay notes that:

�The viability of Aboriginal community justice mechanisms depends on Aboriginal autonomy. At the most basic level this means that police and other Australian law enforcement agencies will not intervene unilaterally in offences involving aborigines... Ultimately, autonomous local justice systems may provide the most effective basis for mutually adaptive change in both Aboriginal and white Australian societies.� (28)

Such a powerful comment recognises the value of autonomy. However, I am unconvinced at the part where she says that the police may be invited to enter by the community leaders to control a problem. I believe that this is quite simply unacceptable (unless it is for an emergency situation). If autonomy is to be achieved, it must be achieved wholly. Obviously, if an Aborigine commits a crime outside his community, then he or she should not necessarily be able to seek refuge in an aboriginal community.

2) LEGISLATION

a) INTRODUCE �ARREST AS A LAST RESORT� MEASURES

Much can be achieved in controlling the actions of a Police force if legislation is passed in parliament. The first legislation I would impose would be to prohibit police arresting Aborigines unless it is a matter of �last resort.� This would significantly curtail the actions of police in arresting those who they believe are trouble makers. During my research, I read a shocking story about an Aboriginal woman detained for being in a stolen car, even though she claimed that she WAS NOT a party to the robbery and HAD been raped by the men who stole the car. Such disgraceful treatment of any person recognises that laws and regulations must be put in place. Obviously, the legislation would either have to be rather detailed in describing what the term �last resort� meant, or face judicial interpretations on the meaning of such terminology. It is often the case that the judiciary will not always take an active role in promoting the purposes of a legislation, so I would suggest a codification of the specific powers of police in relation to Aborigines. The decline in custody of Aborigines will probably result in a reduction of the rate of suicides in custody (as the removal of public drunkenness in 3 out of six states have reduced arrest rates for good order offences committed by indigenous people (29)).

B) DECRIMINALISE PUBLIC DRUNKENNESS AND �GOOD ORDER� OFFENCES FROM BEING IMPOSED ON ABORIGINES

In D. Parker�s research it was revealed that the most �dramatic and worrying� statistic from the analysis of the cases of violence recorded, related to alcohol(30). According to the statistics, of those held in police custody during August 1988, 64 per cent of Aborigines were in custody as a direct result of drunkenness or �good order� offences (31). It was also found that 95 per cent of homicides and serious assaults flowed from the intake of alcohol in large quantities, and in 50% of cases, both the offender and victim had been drinking. This finding was backed up by Paul Wilson�s research in the Queensland reserve. In three states of Australia, Queensland, Tasmania and Victoria, public drunkenness remains an offence. Public drunkenness provides Governments with a good way of exercising social control, allowing �trouble makers� to be put into police custody (32). However, with Deaths in custody occurring over and over again, surely it is time to repeal the laws. Even if laws related to public drunkenness are repealed, that does not mean police will not continue to hold indigenous people in a custody situation:

�Despite having decriminalised public drunkenness many years ago, South Australia still has very few facilities for people found intoxicated in public. The result is that the bulk of the people detained without arrest for this reason, are still held in police cells. The State Government has failed to implement Recommendation 80 (of the Royal Commission) which calls for the establishment of adequately funded sobering up facilities.� (33)

To me this highlights that just repealing a law is not adequate. Sufficient funding must be put in place to support alternative methods. In South Australia, over a six month period, the SA Aboriginal Sobriety Group, Inc. provided 4700 services covering youth rehabilitation, a mobile assistance patrol, but not sobering up facilities (due to lack of financial support). The magnitude of the operation indicates a need for the expansion of such projects to incorporate sobering up facilities (34). One must consider abandoning laws concerning good order as well, especially in relation to police being allowed to take into custody those that swear at officers. Perhaps, much of these good order offences arise from the drunkenness. However, if these laws are not going to be repealed, the Governments must fund Aboriginal run non-custodial places where these �offenders� can be placed. One suspects however, that this will not happen universally due to increasing budgetary restrictions of state governments.

C) DRIVING OFFENCES

Another very big figure in the crime rates for Aborigines is on license/registration charges (over represented 26 times others), and other driving offences. Briefly, it would be worth noting that if the Government allowed free registration and licensing for Aboriginal people, perhaps the arrest rate for such offences will be lower. Many indigenous people are unemployed or are extremely poor. They may not be able to afford the cost of a license or registration. I would also suggest that many of the 302 Aborigines imprisoned for Driving offences (44 percent of those charged... that is, 6.3 times more than non Aboriginals) may also be due to economic reasons (i.e. unable to pay fines). Judges should be encouraged to avoid imprisoning Aborigines for such offences, and possibly suggest constructive ways to help their own communities.

D) REPEAL ACTS THAT ALLOW THE POLICE EXCESSIVE DISCRETIONARY POWERS.

An incident to be described fully in part three of this section was the very recent and disgraceful case of the young innocent aboriginal boys, who had done nothing wrong, and were picked up by the police because they had a �right to�, and treated so terribly that it is evident that existing legislation must be altered. While that incident occurred in Queensland, NSW laws in regards to this are no less humane. In 1997, one of the most disgraceful pieces of legislation was passed through parliament with barely a protest (particularly in our media), except at the Labor Party conference, where a motion was passed for it to be repealed. The act states that a Police officer may escort a child from a public place if it is deemed s/he is in danger or that s/he is likely to commit a crime. The scope for discretionary police action is very large (see this footnote for exact wording of legislation) (35). This basically means that a police officer who believes that a child may commit an offence can be escorted back to his or her parent�s house. However, what if there is no parent or close relative (as seems to be the case with some aborigines)? While the child cannot be taken to a police station, they can be placed with the department of community services. A child can have his wishes considered by the police, but the police officer does not have to inform him/her of that right. Thus, most children will be unaware of their rights. Such policy is an example of how social control comes at the cost of reasonable and just legislation. To legislate away the rights of those who have the least say in the democratic system is to me, utterly unjust. Obviously, the government is not willing to consider the implications of such legislation, and the power it could give to racist police. Indeed, this act states that if the officer chooses to put the child in the care of a �carer� and if the carer feels that the parents shouldn�t be notified, then that is condoned (36). The present legislation was preceded by similar legislation introduced in 1994. This could well account for the prominence of NSW Aboriginal juveniles in custody figures (particularly since the police prior to the 1997 act could arrest a juvenile for not giving his/her name or address).

3) INCREASING ABORIGINAL REPRESENTATION IN OUR CRIMINAL JUSTICE SYSTEM.

This is a very important way to reduce the tension between aborigines when they do come into contact with white law. Paul Wilson has noted the lack of Aboriginal representation in all stages of the system: There are no Aboriginal judges (when the book was written), magistrates, lawyers and often untrained justices of the peace administer punishment. Another important point is that Aborigines are not being tried �by their peers.� Wilson says that the jurors are often: �staunch white citizens whose knowledge of Aborigines comes from racist textbooks and observation of drunks in the street.�(37). While our text books have certainly changed to reveal the true nature of the devastating impact on Aboriginal life of the white invasion, the conservative government in its efforts to halt �political correction� is embarking on a mission of historical revisionism. �We can feel good about our history� proclaims John Howard. He refuses to apologise for the nation in its appalling treatment of the �stolen generation.� Indeed, the Howard Government has gone out of its way to turn the clock back to a period of denial. The WIK legislation is another overt attempt to halt the reconciliation process. Even in the MABO decision, which preceded the WIK decision, Brennan clearly stated that where a clash exists in the land, then native title is extinguished. But this is not enough for our wealthiest pastoralists (among them is... wait for it... Ian McLachlan, deputy National Party MP (38). Kerry Packer also has very extensive pastoral land holdings as does the Sultan of Brunei.) and mining companies, whose absolute control of the land their forefather�s gained by the blood of Aborigines (39) is under the threat of �co existence.� That is, these wealthy pastoralists, with their thousands of acres, are happy for their cattle to live on the land, but not Aborigines.

There must be a recognition at the very least, that there is something dramatically wrong with the administration and the operation of our legal system. For such an extreme over representation in custody and crime figures, the blame CANNOT be put in the hand of the aborigines. In Ivory Scales Black Australia & the Law (40), there is a quite detailed diagram of the ways in which there can be an increase in Aboriginal representation at various stages within the legal system. In it there is a suggestion of Aboriginal liaison units, Aboriginal Police Aids, Aboriginal welfare officers as well as Aboriginal parole officers. There are also suggestions of a community based framework to support those in gaols. If Aborigines were tried by their peers, perhaps different outcomes will emerge in a trial. To have 12 people who, like Wilson says, are going to be white, and most probably prejudicial, is not conducive to a fair trial and the precept that an alleged criminal is tried by his/her peers. The judiciary too needs to change its attitude, particularly magistrates in local areas with a large aboriginal community. However, will increased Aboriginal representation in the policing process work? ATSIC has noted that far from easing tensions, Aboriginal police liaison officers (PLOs) are working to INCREASE charges:

�A widespread view was expressed that the liaison officers had taken on more of a police role rather than liaison work... �They are perceived as traitors by their community�... In Brisbane... they were being used as �black trackers� by reporting Aboriginal and Torres Strait Islander people on warrants and minor offences... Aboriginal people become incensed that another Aboriginal person is helping to arrest them in situations they perceive to be unjust.� (41) Perhaps the most shocking example is that of the young boys who had shown no evidence of criminal behaviour, were picked up by some officers, taken about 14 kilometres to a wasteland area and �terrorised� by six police officers, who dumped them after the mental abuse, and the humiliating experience of having their clothes and shoes taken off. The magistrate hearing the case against the police, referred to the children THREE TIMES as the �defendants�. Instead of the officers being on trial, it was the poor children, one of which was so traumatised by the cross examination, he cried. As the report on this matter noted on the result of the case:

�The result was as much a finding about their (the childrens�) character as it was about alleged criminal behaviour by six police officers.� This is backed up by the magistrate who wrote:

�The three complainant children have more knowledge as to their rights in relation to the police than the ordinary child in the street... they know the Court system well, having kept the Court and legal representatives occupied on many occasions... All three of them by their history and their own testimony have no regard for members of the community, their property or even the justice system.� (42)

Does this mean, that if a child has partaken in much supposed criminal activity, that he or she will not find justice if the police abuse them? The answer could well be yes. Would Michael Kirby, now a High Court Judge condone this sort of judicial behaviour? Did the supreme court of Queensland condone this behaviour when it did not overturn the magistrate�s decision? If events like this are still to happen (it happened on 10 May 1994), it says that the Courts are still not giving certain people Justice. In a speech Chief Justice Brennan made to a conference on Mason as Chief Justice, he quoted the former Chief Justice:

�Our evolving concept of the democratic process is moving beyond an exclusive emphasis on parliamentary supremacy and majority will. It embraces a notion of responsible government which respects the fundamental rights and dignity of the individual and calls for the observance of procedural fairness in matters affecting the individual. The proper function of the courts is to protect and safeguard this vision of the democratic process.� (43)

In light of the often vehement criticism the High Court has managed to muster on the invasion of the rights of the individual (44), why then is a Court of the 1990s, treating the victim as a defendant? The lower echelons of the judiciary need to begin to use their powers as a way to enforce responsible government and to oppose those who seek to diminish the �fundamental rights and dignity of the individual.� Perhaps if legislation is imposed controlling the actions of the police, this will force the judiciary into questioning the motives of police.

4) RE EDUCATION OF POLICE and THE JUDICIARY

Until recently, most children have been taught that the arrival of the British to Australia was a great event. What they were not told was that Australia was invaded by these great settlers. The Year Eleven and Twelve Legal Studies course provides a thorough and detailed account of the full extent of Aboriginal mis treatment at the hands of white Australia. A valuable step in the whole process of reconciliation and the operations of police, would be an intensive introduction of a compulsory course on Aboriginal history, culture and current issues for every police officer, magistrate and judge. It is not adequate for the younger police officers entering the force to be educated on these matters, for the system changes the recruits. The example of the Aboriginal PLOs demonstrates how even Aborigines can change in a system with such entrenched discrimination. Forcing police to read the harrowing tales of Aborigines at the hands of all stages of the Government (the stolen generations report... Although 7000 pages, it will be reduced to a paperback) may bring understanding. Like the abused woman is treated with due care by the Criminal Justice System when she assaults or even kills her abuser, perhaps it is conceivable that a similar psychological assessment approach towards indigenous offenders can be taken seriously by the courts (45). The re education needs to be complete and comprehensive. It would obviously be very difficult to co ordinate, and in light of John Howard�s historical revisionism vis a vis the Aborigines (46), it is unlikely to be uniformly adapted

CONCLUSION

As we approach the new millennium, the outlook of improvement of the Aboriginal people is looking dim. Indeed, Paul Keating�s period as Prime Minister brought perhaps the most hope for a unified and dignified approach to Aboriginal autonomy. I have argued that the crucial element in the whole process of reducing the tragic figures of Aboriginal deaths, both in custody, and at the hands of their fellow people, is autonomy. Land rights are crucial to this. Many say that we cannot let Aborigines own the land, because they never did! This misses the point. Aborigines did not own the land because for them, it was beyond ownership... it was sacred, not to be touched or sold. Our system deals with ownership, and if to give aboriginal ownership of land is the way Aborigines can gain their independence, then so be it. Of course, others will say there is more to the problem than just the criminal justice system:

�The achievement of land rights, a secure economic base, good health care, real educational opportunity - all are necessary if a new order in Australian society is to be achieved, free from the poverty and dispossession which lie behind Aboriginal involvement in crime and the Aboriginal experience of discrimination.� (47)

However, the criminal justice system was the method by which the invasion of Australia was used to force the indigenous people into submission and impose on them the plague of alcohol and disease. All the problems encountered by the Aboriginals are a bi product of the actual dispossession coupled with a criminal justice system riddled with racism or paternal treatment of Aboriginal issues. To conclude, I end with Paul Wilson who wrote that the only way to end this tragic mess that is Aboriginal crime:

�is to eliminate our paternalism, increase Aboriginal decision-making powers and provide black people with their own land. Only then can we begin to erase from our collective conscience the guilt of all those black deaths that have, directly and indirectly, flowed from our white hands.� (48)

1 Hazelhurst, K.M.; Ivory Scales: Black Australia & the Law; Justice Michael Kirby, foreward page xvi. This was before his appointment as a Justice of the High Court.

2 Keeping Aboriginal and Torres Strait Islander People Out of Custody. Chapter Two, Table 5. From the ATSIC home page: http://www.atsic.gov.au/library/katsipoc/contents.htm. This is a comprehensive report. It is over 130 A4 pages, small type, printed out from web site. If I quote from pages, I will refer to paragraph numbers.

3 Ibid; Table 14

4 Ibid; Table 8

5 Ibid; Table 6

6 Ibid; Table9

7 Ibid; Table 16

8 Ibid; Table 23

9 Vicki Dalton; Australian Deaths In Custody & Custody - Related Police Operations, 1995-96; Australian Institute of Criminology; Report downloaded from Australian Institute of Criminology web site: http://www.aic.gov.au. Outlines worsening in Deaths in Custody; pg 3

10 Ibid; pg 2

11 I have lost my volume 1 text of criminology: but the article I refer to is one we studied early in the semester that divide categories of criminality into, environmental conditions, genetic explanations, cultural explanations. While these categories are often used by some as an exclusive explanation, I find that this is not adequate in explaining the aboriginal situation. A large part of the problem is not only social and material, it is equally about history and culture.

12 Keeping Aboriginal and Torres Strait Islander People Out of Custody. Chapter Three. From the ATSIC home page: http://www.atsic.gov.au/library/katsipoc/contents.htm

13 Editorial; �To Arrest or not to Arrest?�; Criminal Law Journal;vol 18, June 1994; pg. 133.

14 Wilson, P.R; Black Death White Hands (1982); Sydney: George Allen & Unwin; pg. 75

15 Ibid; pg. 126

16 Ibid; pg. 48

17 Ibid; pg. 21

18 Ibid; pg. 30

19 Gilbert, K.; Living Black; Penguin Books; 1977; pg. 2.

20 Ibid; pg. 2.

21 Yunupingu, �letter from black to white�, LAND RIGHTS NEWS; vol. 2 no. 6; 1976, p 9. Italics added for emphasis.

22 Mabo and Others v. Queensland (no. 2) (1992) 175 CLR 1 F.C. 92/014. Section 12 of Brennan J�s decision. Downloaded and printed out from High Court Website at: http://www.austlii.edu.au/au/cases/cth/high_ct/175clr1.html. Brennan�s decision came out to 38 pages of printed A4 material. Because page references will be different to those contained in CLR, no page references are quoted, but rather the numbered sections of the decision.

23 Ibid; Section 41.

24 Ibid; Section 42.

25 Mabo v Queensland (1988) 166 CLR, at p 219.

26 Mabo and Others v. Queensland (no. 2) (1992) 175 CLR 1 F.C. 92/014. Section 83, Brennan J.: �I hold to be the common law of Australia with reference to land titles:... 6. Native title to particular land (whether classified by the common law as proprietary, unfructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the undugenous people who by those laws and cystoms have a connection with the land... 7. Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, loses its connection with the land or on the death of the last member...�

27 Plenty v Dillon (1991) 171 CLR; firmly established that unless the police are on orders from the crown (ie. To arrest), they are not allowed to enter private property if permission has been denied. I am not sure of the full extent of Native Title, but since much of the title will be for aboriginal use exclusively, the police will not be able to interfere with drunkennes or order offences unless they are invited on that land.

28 Hazelhurst, K.M.; Ivory Scales: Black Australia & the Law; chapter 11, �Local autonomy and the viability of community justice mechanisms�; Nancy M. Williams; Pg. 237.

29 See section in this essay under the �FACTS� section, figures from C. 30 Parker, D.; �The Criminality of Aborigines in Western Australia.� Report produced for the department of Native Welfare, WA.; 1970-1979.

31 McDonald; �National Police Custody Servey August 1988. Preliminary Descriptive Findings�; Royal Commission into Aboriginal deaths in custody, Research paper no. 8; Criminology; Research Unit, Canberra; 1989; pg. 6.

32 Queensland uses these laws very widely during �schoolies week� where they can deal with many drunk teenagers celebrating in the streets during the November/December period of celebration.

33 Keeping Aboriginal and Torres Strait Islander People Out of Custody. Page 17 of Chapter six.

34 Keeping Aboriginal and Torres Strait Islander People Out of Custody. Page 17 of Chapter six.

35 CHILDREN (PROTECTION AND PARENTAL RESPONSIBILITY) ACT 1997 - SECT 19 When action may be taken under this Division (1) A police officer may remove a person to whom this Division applies from any public place in an operational area if the police officer believes on reasonable grounds that the person: (a) is not subject to the supervision or control of a responsible adult, and (b) is in the public place in circumstances that place the person at risk. (2) A police officer who removes a person from a public place under this section must escort (or arrange for another police officer to escort) the person to a place and place the person in the care of a person in accordance with section 22. (3) For the purposes of this section, a person is at risk if: (a) the person is in danger of being physically harmed or injured, or (b) the person is in danger of abuse (including assault and sexual assault, ill treatment and exposure to behaviour that may cause psychological harm to the person), or (c) the person is about to commit an offence.

36 Ibid; Section 25, 2A

37 Wilson, P.R; Black Death White Hands (1982); Sydney: George Allen & Unwin; pg. 69

38 Indeed, my research has led to some interesting insights. Looking at the Parliament House web site, particularly at http://www.aph.gov.au/house/committees/atsia/members.htm which lists the members of the parliamentary (house of representatives) committee into Aboriginal and Torres Strait Islander people, and you have so many Liberal party members from rural seats who happen to have farming interests. As far as Ian McLachlan (who is not a member of the committee) is concerned, see Alan Ramsey, Sydney Morning Herald Saturday 15-11-97. Alan Ramsey said that McLachlan was one of Australia�s wealthiest pastoralists, and that he was on the committee of five members of the Liberal party who formed part of the response to MABO.

39 Wilson, P.R; Black Death White Hands (1982); Sydney: George Allen & Unwin; see chapter one.

40 Hazelhurst, K.M.; Ivory Scales: Black Australia & the Law; Pg. 269.

41 Keeping Aboriginal and Torres Strait Islander People Out of Custody, Chapter Six.

42 Keeping Aboriginal and Torres Strait Islander People Out of Custody, pgs. 10-11of ChapterFour.

43 A TRIBUTE TO THE HON. SIR ANTHONY MASON, AC KBE. Given by The Hon. Sir Gerard Brennan, AC KBE Chief Justice of Australia, 8 September 1995. Quoting Chief Justice Mason from "Future Directions in Australian Law", (1987) 13 Monash Law Review 149 at 163.

44 see Plenty v Dillon (1991) 171 CLR.

45 See LAW 412 materials prepared by Stuart Russell, pg 56, volume 3; Rendering them harmless: While the article says that the psychological profiling of women often takes away from the criminality involved because it denies the calculating intent of some crimes... In the case of Aborigines,if alcoholism is involved when an Aborigine kills someone, a reduction of the charge to manslaughter (Wilson notes that most are distraught at what they did and barely remember the act) could be a positive step if it could be established that the deep combination of poor social, environmental, cultural conditions coupled with a lack of intent resulted in the killing.

46 When Paul Keating said that School Children would be taught that Australia was invaded by the British, John Howard criticised it by implying that this did not happen and that Australians should �not feel guilty� for the mistakes of the past, and that we should be very proud of our history. This has been repeated often. Obviously, Australia will be proud of its WIK legislation, and Howard will contiue to believe that the injustices do not occur today by legislating away the Common Law rights of Aborigines to their land. While the Germans constantly apologise for Hitler�s treatment of the Jews, and the Japanese are heavily criticised by many in this country for not apologising to those it mistreated during World War II, The Government is not willing to apologise for the tragic failures of successive governments in dealing with our indigenous people.

47 Foley, M.; �Aborigines and the Police�; from Hanks, P. & Keon-Cohen, B.; Aborigines & the Law; Sydney: George Allen & Unwin; (1988); pg. 190.

48 Wilson, P.R; Black Death White Hands (1982); Sydney: George Allen & Unwin; pg. 119.

1) PUBLICATIONS:

Chris Cunneen & Keeping Aboriginal and Torres Strait Islander David McDonald People out of Custody Aboriginal and Torres Strait Islander Commission Web Site: http://www.atsic.gov.au/library/katsipoc/ontents.htm (1996)

Dalton, V.; Australian Deaths in Custody & Custody-Related Police Operations, 1995-96 Australian Institute of Criminology Web Site http://www.aic.gov.au

Hanks, P. & ABORIGINES & THE LAW; Keon-Cohen, B. Sydney George Allen & Unwin (1988).

Hazelhurst, K.M. IVORY SCALES: BLACK AUSTRALIA & THE LAW; New South Wales University Press (1987).

Hocking, B.; INTERNATIONAL LAW AND ABORIGINAL HUMAN RIGHTS; The Law Book Company Limited (1988).

McRae, H & ABORIGINAL LEGAL ISSUES; others The law Book Company Limited (1991) Chapters 2, 3, 4, 6, 7.

Stuart Russell; Readings in Law 412 Volume Three: pages 217-238 Volume Three: pages 80-87 Volume One

Paul Wilson; Black Death White Hands; 1982 Sydney: George Allen And Unwin

ATSIC THREE YEARS ON:

(Implementation of Commonwealth Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody). 1993-1994 Annual Report. Commonwealth of Australia (1995). Volume 1.

2) COURTS AND LEGISLATION

MABO and OTHERS v QUEENSLAND (no. 2) (1992) 175 CLR 1 F.C. 92/014. Down loaded and Printed first 38 pages (Brennan J) from: http://www.austlii.edu.au/au/cases/cth/high_ct/175clr1.html

CHILDREN (Protection and Parental Responsibility) ACT 1997. Downloaded from:

http://www.austlii.edu.au/do2/disp.pl/au/legis/nsw/consol_act/capra1997484/

CHILDREN (Parental Responsibility) ACT 1994. Downloaded from:

http://www.austlii.edu.au/do2/disp.pl/au/legis/nsw/consol_act/cra1994343/