1 Racism, Discrimination and the Over – Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues
2
included the author and Blagg, Morgan and Ferrante from the Crime Research Centre
in Western Australia.
3
The impetus f
or this article derives from both the research commissioned by the
Victorian EOC
4
and the need to provide a response to the Weatherburn et al
argument. A much fuller discussion of the over
–
representation of Indigenous people in
the criminal justice, and in
particular the concepts of systemic bias, discrimination and
institutional racism can be found in the EOC report (Blagg et al 2005). However, it is
important to consider briefly the conceptual framework used to account for
differential treatment by crimin
al justice agencies. One of the problems with the
Weatherburn critique of ‘systemic bias’ is precisely the failure to provide such a
conceptual analysis.
The article begins with a discussion of the three concepts often used when discussing
and explaining
the over
–
representation of Indigenous people, and racial minorities
more generally, in the criminal justice system: systemic bias, racial discrimination
(and also ‘indirect racial discrimination’) and institutional racism. Following this
discussion there
is a critique of Weatherburn’s account of over
–
representation.
Conceptualising ‘Race’
–
Based Differences
Although these terms ‘systemic bias’, ‘racial discrimination’ (and also ‘indirect racial
discrimination’) and ‘institutional racism’ are sometimes u
sed interchangeably, they
do have different meanings and connotations, and often reflect one’s theoretical and
methodological focus. A search of the relevant Australian databases such as APAFT,
CINCH and AGIS revealed that the concept of systemic bias was
used infrequently in
the Australian academic and public policy literature on Indigenous people and the
criminal justice system. However, it is used far more frequently in
North
American
analysis of race and criminal justice. The use in the US reflects an a
pparent pre
–
occupation with individual decision
–
making and bias. The concepts of racial
discrimination (and in particular indirect racial discrimination) and institutional
racism are used more often in the Australian context. Institutional racism is a conc
ept
commonly used in the UK.
5
Systemic Bias
Australian database searches revealed that the
only
use of the term ‘systemic bias’ in
academic discussions on Aboriginal people and the criminal justice system was the
previously mentioned article by Weather
burn et al (2003). The irony of this is that the
point of the Wea
therburn article was to criticis
e the use of ‘systemic bias’
explanations by other Australian academics writing on Aboriginal over
–
representation
in prison.
Occasionally reports by the Huma
n Rights and Equal Opportunity Commission
(HREOC) discuss systemic racism and systemic racial discrimination, although not
3
See Blagg, Morgan, Cunneen and Ferrante (2005).
4
The views expressed here are those of the author. They do not necessarily reflect the position of the
Victori
an EOC or the other researchers on the project.
5
For further discussion of the US material and the British discussions on institutional racism since the
McPherson Inquiry, see Blagg, Morgan, Cunneen and Ferrante (2005).
5
anti
–
discrimination mechanisms more effectively, part
icularly in the area of
indirect discrimination and representative actions (Johnston 1991:(4)78).
A leading legal authority on discrimination, Phillip Tahmindjis (1995:123) has
concluded ‘that instances of indirect racial discrimination may be enormous,
o
ccurring in
… employment, education and training, health and justice’. Despite this
there appears to be little work by criminologists on how indirect racial discrimination
may operate within the criminal justice system and serve to entrench unlawful
behavi
our against Indigenous people (and other racial minorities). Certainly to my
knowledge, no large public
–
funded crime research organisation like the Australian
Institute of Criminology or the New South Wales Bureau of Crime Statistics and
Research have ever
undertaken this type of important research. One can only
speculate that the study of unlawful behaviour on the part of government agencies
connected to the criminal justice system is to
o
sensitive for government
–
sponsored
criminology.
Institutional Racis
m
The concept of institutional racism has been used more frequently than ‘systemic
bias’ in the Australian literature when discussing the relationship between Indigenous
people and the criminal justice system.
8
It is important to distinguish racism from
p
rejudice, discrimination and other types of hostility or aggression which are
explained in terms of individual pathology. Hollinsworth notes
:
Racism is not primarily a psychological or person attribute but is much more a
relationship of domination and sub
ordination, of inclusion and exclusion. We
can identify different forms of racism including interpersonal, institutional,
ideological and systemic (Hollinsworth 1992:40).
The concept of racism and institutional racism refers to broad social practice
compa
red to ‘bias’ which tends to relate to individual decision
–
making. At times in
the literature, institutional racism and indirect discrimination appear almost
interchangeable, and this perhaps relates to the attempt to join a concept used in
sociology and s
tudies of racism (institutional racism) with a concept which has legal
force (indirect discrimination).
The concepts of racism and ‘institutional racism’ in relation to Indigenous people and
the criminal justice system are used in several reports by the
Human Rights and Equal
Opportunity Commission (HREOC), the Royal Commission into Aboriginal Deaths
in Custody, and various academic writings, including some by this author (Cunneen
2001a).
The question of racism was fundamental to the Royal Commission in
to Aboriginal
Deaths in Custody: racism is ‘institutionalised and systemic, and resides not just in
individuals or in individual institutions, but in the relationship between the various
institutions’ (Johnston 1991:vol 4, 29.5.2, 124). According to Elliot
Johnston, non
–
Aboriginal people have great difficulty understanding institutional racism, particularly
8
And, indeed, the relationship between Indigenous people and state bureaucracies more generally. For
a discussion on institutio
nal racism and health services for Aboriginal people see Mooney (2003).
15
the criminal justice system. Some $7.52 million was allocated to ‘reforms to policing,
custodial arrangements, criminal law, judicial proceedings and coronial inquiries’.
This amount represented 5 per cent of the first sta
ge allocation, and 1.9 per cent of the
total $400 million. A further $6.94 million was allocated to ‘youth bail services’. This
amount represented 4.6 per cent of the first stage allocation, and 1.7 per cent of the
total $400 million package. Even if the a
llocation of funds to the Aboriginal Legal
Services is included in this amount it still represents less than 16 per cent of the total
Federal allocation to Royal Commission recommendations.
12
It quite clear the overwhelming bulk of Commonwealth money afte
r the Royal
Commission went to addressing the underlying issues. The largest single allocation
was to drug and alcohol services. More money was allocated to Aboriginal pre
–
school
places than to reforms to policing. Much of the second stage allocation went
to
economic development including land acquisition, employment programs and other
economic initiatives. Weatherburn et al misrepresent the allocation of Commonwealth
monies in an attempt to demonstrate that money was (mis) spent on reforming the
criminal j
ustice system rather than attacking the underlying issues. Not only is this
wrong, it also diverts attention away from a more important question: if so much of
the Commonwealth allocation was directed at underlying issues, why haven’t we seen
a marked impr
ovement in the socio
–
economic situation of Indigenous people and a
lessening in over
–
representation in prison?
Table 1. Commonwealth Expenditure Related to the Royal
Commission into Aboriginal Deaths in Custody
The Commonwealth Response to the Royal Com
mission into
Aboriginal Deaths in Custody
$
Million
%
Each
Stage
%
Total
First Stage Response Announced 31 March 1992: $150million over five
years
Aboriginal drug and alcohol services
71.6
47.7
17.9
Aboriginal legal services
50.4
33.5
12.
6
Reforms to policing, custodial arrangements, criminal
law, judicial proceedings and coronial inquiries
7.52
5.0
1.9
Youth bail hostels
6.94
4.6
1.7
Link Up services
1.9
1.3
0.5
National Aboriginal & TSI Survey
4.4
2.9
1.1
ATSIC Monitoring Unit
4.
3
2.9
1.1
Monitoring and reporting on the human rights of Aboriginal and TSI
people by the Commonwealth Human Rights& Equal Opportunity
Commission
3.14
2.1
0.8
Subtotal
150.2
100
.0
Second Stage Response A
nnounced 24 June 1992: $250 million over five
12
It is not accurate to see the allocation of funding to the Aboriginal Legal Services as simply
connected to the operation of the criminal justice system. The Royal Commission into Aboriginal
Deaths in Cu
stody recognised the important work of ATSILS in safeguarding and promoting the legal
rights of Indigenous people in all areas of the law both civil and criminal, and also included the ability
to provide community legal education, engage in policy developm
ent and advocate for law reform. A
specific area discussed by the Royal Commission was the need to ensure Aboriginal women’s interests
were represented by ATSILS. For further discussion see Blagg et al (2005).
16
years
Land acquisition and development program
60.0
24.0
15.0
Aboriginal Rural Resources program
6.6
2.6
1.7
Community Economic Initiate Scheme
23.3
9.3
5.8
Australian National Parks and Wildlife Se
rvice contract employment
program for managing natural & cultural resources
10.6
4.2
2.6
Aboriginal industry strategies in the pastoral, arts and tourism areas
15.0
6.0
3.7
Community Development Employment Program
43.9
17.5
11.0
Young Peoples’ Employm
ent Program
21.9
8.7
5.5
Young Peoples’ Development Program
23.0
9.2
5.7
Aboriginal Youth Sport & Recreation Development Program
9.0
3.6
2.2
Additional Aboriginal Education Workers
20.0
8.0
5.0
600 more pre school places for Aboriginal children
10.0
4.
0
2.5
Improved co
–
operation between the Commonwealth & the
States/Territories; assist them to monitoring initiatives arising from the
RCIADIC
6.9
2.7
1.7
Subtotal
250.2
99.8
Total
400.4
100.0
Source: Cunneen
&
McDonald 1997:224
–
225
.
Conclusion: Human Rights, Racial Discrimination and Over
–
Representation
The purpose of this article has been to explore some of the conceptual issues around
systemic bias, racial discrimination and institutional racism, as well
as providing an
assessment of Weatherburn et al’s arguments concerning Indigenous over
–
representation. Some general conclusions that can be drawn in relation to over
–
representation of Indigenous people in the criminal justice system include the
following.
Firstly, there is a need for clarity in regard to the terms we use, and an appreciation of
the differences between concepts such as systemic bias, racial discrimination and
institutional racism. There is also a need to understand the limitations of stati
stical
data in terms of analysing racial discrimination (particularly indirect discrimination)
and institutional racism. The phenomenon of institutional racism is much deeper than
statistics are likely to reveal, although data may show important trends in
access and
equity.
Second, there is a need to develop explanatory models which understand and account
for complexity both in terms of offending behaviour, as well as criminal justice
responses to social groups, particularly where those groups have been ra
cialised.
Related to this point is that public policy responses are likely to require complex,
multifaceted and targeted initiatives across a broad range of areas.
Diversion has been one strategy used in an attempt to minimise contact with criminal
justic
e agencies, particularly the police and courts. It has been part of multiple
government strategies for Indigenous peoples including those which focus on
employment, education, health, violence prevention, etc. However, in my view the
W
eatherburn
article
fa
ils to distinguish between
diversion and Indigenous programs
relate
d
to community capacity building and control over offending behaviour. What
looks like ‘diversion’ from a non
–
Indigenous, orthodox criminological perspective,
may look like community contro
l with a commitment to actualising self determination
from an Indigenous perspective. To characterise community initiatives like night
17
patrols, circle sentencing or community justice groups as ‘diversion’ betray
s
a
profound lack of appreciation of the orig
in of these interventions and their capacity to
generate individual and social change.
Finally, there is a need to understand, document and challenge racial discrimination
and institutional racism, and such a challenge is not only about constructing an
ex
planation for Indigenous over
–
representation in the criminal justice system. It is
also fundamentally about issues of equity, justice and human rights. The study of
racism in the criminal justice system is an important human rights and public policy
issue,
irrespective
of whether it has any connection to explaining the over
–
representation of Indigenous people. There are a number of reasons why
criminologists should be concerned with this issue:
•
Racial discrimination is unlawful behaviour under domestic and
international
law.
•
Equity is a fundamental principle in the provision of government services.
•
Equality before the law is a fundamental principle to the rule of law.
•
There is a small but important tradition in criminology which regards the
abuse of human r
ights as a crime, and a fundamental area for theory and
research.
13
It is interesting that when lawyers study issues of discrimination they are not
questioned as to the relevance of the work they undertake, and this is probably
because principles of fair
ness, equality and non
–
discrimination are seen as
foundational principles to the rule of law. Nor are sociologists or political scientists
questioned as to their interest in institutional racism perhaps because the analysis of
social and political power is
fundamental to their disciplines. Yet it is a very different
situation when criminologists undertake this type of work, perhaps because the vast
bulk of criminological research sees crime within the narrow confines of individual
responsibility and the cri
minal law, and state responses as the more or less technical
application of laws, policies and procedures to control crime. Most government
–
employed ‘administrative’ criminologists steer as far away as possible from broader
issues of fairness, equality and
human rights. Yet, criminologists can make a
significant contribution to the study of these issues and it is a study that can be
justified on political, moral and disciplinary grounds.
13
For a recent example see, Green and Ward (
2004).
18
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