Decolonising Criminology: Imagining Justice In A Postcolonial World 1137532467, 9781137532466, 9781137532473

Table of contents :
Foreword......Page 7
Acknowledgements......Page 11
Sensitivity Note......Page 13
Contents......Page 14
List of Figures......Page 16
List of Tables......Page 17
Decolonising Criminology......Page 18
The “Innocence” Project: Redeeming White Settler Criminology......Page 23
Everyday Cruelty......Page 25
The Nation State......Page 26
Temporal Bracketing......Page 28
Challenging Criminology: A Post-Disciplinary Turn......Page 31
Over-Representation?......Page 32
Colonisation: A Process, Not an Event......Page 33
A Radical Agenda......Page 34
Creative Hybridity......Page 35
Postcolonial and Post-Disciplinary Perspectives......Page 36
References......Page 41
2: Postcolonial Criminology: “The Past Isn’t Over…”......Page 47
Reading Criminology South of the Border......Page 48
Postcolonial Turn and Coloniality......Page 50
Settler Colonialism......Page 51
A Useful Comparative Criminology......Page 53
International Relations?......Page 54
Partitions and Packages......Page 55
Holding on to Place......Page 56
Challenging the Accredited Version......Page 58
Fashionable Adornments......Page 59
Imaginative Geography......Page 60
Winds of Change......Page 61
Not a Metaphor......Page 62
Displacing Universality: Indigenous Knowledges......Page 64
References......Page 66
Legal Materials......Page 70
3: “Who Speaks for Place?”......Page 71
Obscuring Place: Bauman and Liquidity......Page 73
White Diaspora’s Spatial Imaginary......Page 75
“Cunning Recognition”......Page 76
Fresh Contestations......Page 77
“Epistemologies of the South”......Page 79
Sites of Place-Based Resurgence......Page 80
Indigenous Manoeuvres in International Law: Resurging, Reclaiming or Reaffirming State Sovereignty?......Page 81
Critical Perspectives on Indigenous Peoples’ Involvement in International Law......Page 83
Regional Indigenous Nation Agreements......Page 85
Kalaallit Self-Government: A Step Towards Self-Determination......Page 87
Indigenous Sovereignty-Making Beyond and Against Statehood......Page 88
References......Page 90
Legal Materials......Page 94
4: Decolonising Criminology Methodologies......Page 95
The Cloak of Neutrality......Page 96
Western Criminology Eschews Indigenous Knowledges and Methodologies......Page 99
Don’t Use the C Word: Taking the Colonial Out of Criminology......Page 100
Decolonising Research Praxis: Strengths-Based and Respect for the Indigenous Domain......Page 101
Not Seeing Indigenous People for the Statistics......Page 104
Guidelines for Ethical Research......Page 105
Practices of Centring Indigenous Perspectives......Page 107
References......Page 109
Royal Commission Materials......Page 112
5: Borders Are Strange Places: Borders of the State to Boundaries of the Prison......Page 113
Histories of Massacres and Massacred Histories......Page 115
Dispersed White Power and Violence......Page 118
Colonial Hegemony-Building and Its Violent Underbelly......Page 119
Prison Legacies Beyond the Prison......Page 123
Early Prisons: Civilising Carceralism on Missions and Ration Depots......Page 125
Aboriginal Segregation in State Protectorates: Protective Carceralism......Page 130
Assimilation Policies and Welfare Carceralism......Page 134
Citizenship and Penal Carceralism......Page 136
References......Page 139
Legal Materials......Page 148
6: Restorative Justice or Indigenous Justice?......Page 149
Global RJ......Page 151
Neighbourhood Focus......Page 153
Indigenous Renaissance......Page 154
Living Well......Page 155
Epistemicide......Page 156
Racialised Punishments......Page 157
Marginalised or Oppressed?......Page 159
Policy Convergence......Page 160
An “Inter-Cultural” Turn?......Page 161
Restorative Justice and Epistemic Rights......Page 162
Back to Country......Page 163
References......Page 164
Legal Materials......Page 168
7: Disciplinary Power or Colonial Power?......Page 169
Ruptures, Breaks and Difference......Page 170
Social Oblivion......Page 171
Power and Penality (With and Without) Knowledge......Page 173
A Carceral State......Page 175
Marking out the Space of the Camp......Page 176
Ongoing Coercion: Bare Life......Page 178
Provincialising Foucault......Page 179
The Penitent Soul......Page 181
Foucault and Biopower......Page 183
Productive Biopower......Page 184
Necropower......Page 185
Bare Life and Necropolitics in Custody......Page 187
References......Page 188
Legal Materials......Page 192
8: Justice in the Shadow of the Camp......Page 193
The Colonial Matrix of Power......Page 195
“Sovereign Is He…”......Page 196
The State of Exception......Page 198
The Point of Indistinction and the Threshold......Page 199
The Shadow of the Camp......Page 201
Indigeneity as a “Transit”......Page 202
Experiences of the Criminalised and Colonised—Shame, Pain and Identity......Page 203
Zones of Exception for Aboriginal Children: Bare Life in Prisons......Page 205
Shackled and Restrained......Page 207
The Camp Outside Prison Walls in the Northern Territory......Page 209
Fear, Loneliness and Trauma: The Prisons Without and Within......Page 210
References......Page 212
Royal Commission Materials......Page 215
The Colonial Patriarchal Gaze......Page 218
Carceral Feminism, Deluth and Counter-Narratives......Page 220
Erasures of Indigenous Women’s Roles and White Guilt......Page 222
Control of Aboriginal Women Under the Aboriginal Protection Acts......Page 224
Contemporary Control, Oppression and Suffering of Indigenous Women in the Carceral Context......Page 225
Killing Ms Dhu......Page 227
Ms Dhu Treated As Nothing but “Bare Life”......Page 228
“White Men Are Saving Brown Women from Brown Men”......Page 229
White Men and the State Saving Aboriginal Women: The Northern Territory Intervention......Page 230
White Men Saving Aboriginal Women “Victims” in the Penal Arena......Page 234
Falling Through the Cracks: Aboriginal Women “Offenders”......Page 236
Not a Cultural Revolution......Page 239
Law and Policy Down a Cul de Sac......Page 240
Leaving Duluth......Page 241
Feminist Models and “Deep Colonisation”......Page 242
Decolonising Processes......Page 244
Healing and Decolonisation......Page 245
“I Am Here, I Am the Solution”......Page 247
Social and Emotional Wellbeing and Cultural Health......Page 248
References......Page 251
Royal Commission Materials......Page 259
Introduction: Hybrids, Hegemonies and Inter-cultural Struggles in Indigenous Sentencing......Page 260
The Legacy of a Universal Colonial Criminal Justice System: The Hybrid Backdrop......Page 262
Hybridity in Criminal Sentencing Doctrines: Challenging or Entrenching the “Superiority of the Occident and Inferiority of the Orient”?......Page 266
Hybrid “Indigenous” Sentencing Courts......Page 272
Australia......Page 273
Aotearoa/New Zealand......Page 275
Canada......Page 276
Indigenous Sentencing Courts as Cooption......Page 278
Hybrid Sentence Reports for and by Indigenous People......Page 279
Law and Justice Groups and Plans......Page 280
Hegemony: The State’s Responses to Hybrid Sentencing Structures and the Ongoing Need for Indigenous Resurgence......Page 284
References......Page 287
Legal Materials......Page 292
11: Hybrid Justice (ii): Night Patrols and Place-Based Sovereignty......Page 294
What Are They and How Do They Work?......Page 296
What Makes for a Good Service?......Page 297
Warlpiri Women......Page 299
Investment in Night Patrols at a Cost......Page 302
New Night Patrols: Contested Definitions......Page 303
Government Interest in Patrols......Page 304
Patrol Resilience in Australia and Beyond......Page 307
Roads to Freedom? Criminal Law and Indigenous Mobilities......Page 309
The White Diaspora and Its Discontents......Page 311
STOP Signs on Song Lines......Page 312
Warlpiri Country, the Intervention and the Policing Surge......Page 313
Signs and Wonders......Page 314
Big Response to Little Children......Page 315
Fatal Consequences......Page 317
Mobility, Space and Stolen Place......Page 318
Indigenous Automobilities and Places......Page 319
The Pleasures and Pressures of Warlpiri Driving......Page 320
Bush Mechanics......Page 322
Road Safety and (A)Cultural Strategies......Page 323
Dialectics of Indigenous Refusal (We’ve Looked at Life from Both Sides Now)......Page 324
References......Page 326
Legal Materials......Page 333
12: Conclusions: State of Exception and Bare Life in Criminology and Criminal “Justice”......Page 334
Bare Life Outside of the Prisons......Page 336
Three Rs: Refusal, Resistance and Resurgence......Page 338
Decolonisation of Criminology is a Verb Not a Noun......Page 340
References......Page 342
References......Page 345
Legal Materials......Page 395
Royal Commission Materials......Page 398
Index......Page 401

Citation preview

Critical Criminological Perspectives

Decolonising Criminology Imagining Justice in a Postcolonial World

Harry Blagg Thalia Anthony

Critical Criminological Perspectives

Series Editors Reece Walters Faculty of Law Deakin University Burwood, VIC, Australia Deborah H. Drake Department of Social Policy & Criminology The Open University Milton Keynes, UK

The Palgrave Critical Criminological Perspectives book series aims to showcase the importance of critical criminological thinking when examining problems of crime, social harm and criminal and social justice. Critical perspectives have been instrumental in creating new research agendas and areas of criminological interest. By challenging state defined concepts of crime and rejecting positive analyses of criminality, critical criminological approaches continually push the boundaries and scope of criminology, creating new areas of focus and developing new ways of thinking about, and responding to, issues of social concern at local, national and global levels. Recent years have witnessed a flourishing of critical criminological narratives and this series seeks to capture the original and innovative ways that these discourses are engaging with contemporary issues of crime and justice. More information about this series at http://www.palgrave.com/gp/series/14932

Harry Blagg • Thalia Anthony

Decolonising Criminology Imagining Justice in a Postcolonial World

Harry Blagg Faculty of Law University of Western Australia Crawley, WA, Australia

Thalia Anthony Faculty of Law University of Technology Sydney Sydney, NSW, Australia

Critical Criminological Perspectives ISBN 978-1-137-53246-6    ISBN 978-1-137-53247-3 (eBook) https://doi.org/10.1057/978-1-137-53247-3 © The Editor(s) (if applicable) and The Author(s) 2019 The author(s) has/have asserted their right(s) to be identified as the author(s) of this work in accordance with the Copyright, Designs and Patents Act 1988. This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Limited. The registered company address is: The Campus, 4 Crinan Street, London, N1 9XW, United Kingdom

For Gilly, Molly and Teddy (Harry) For Rosie, Markus and Mark (Thalia) For Aboriginal and Torres Strait Islander community workers, activists, researchers, students and friends who show us that a decolonised world is possible.

Foreword

Australia continues to celebrate a notion of British discovery and peaceful settlement, under the illegitimate and illegal premise of a continent belonging to no one. Although this ideology is false and has been nationally and internationally acknowledged through its very own a judicial system, it continues to remain a strongly held belief in hearts and minds of Australians. This is because this way of knowing has been taught to every Australian, through a form of social and political indoctrination which has purposely failed to acknowledge the First Peoples’ civilisation along with their vast scientific and sustainable technology. Instead we were all fed through socialisation that Australia was settled through peaceful occupation, a myth that continues to be taught in our primary and secondary schools. Our tertiary institutions have also failed to ensure that Indigenous perspectives are included in all areas of learning. Australia continues to focus on a story that is and was never its truth. This has been even more difficult for those who are Australia’s First peoples, whose very being, their great wisdoms, laws and lores and knowledges, have not been recognised and taken into account and celebrated. Although Australia’s Aboriginal people’s technologies, paintings and tools predate all other wonders of the world including the Egyptian pyramids, they were not noted or admired. It was not surprising that in 1991 the Royal Commission into Aboriginal Deaths in Custody noted that all Australians need to vii

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a­ cknowledge and learn that Australia has a black history. Three hundred and thirty nine recommendations were made to redress the ignorance regarding Australia’s First peoples and the overwhelming discrimination rolled out in government systems such as health, education, justice and those in their employment. As noted by Commissioner Johnson in relation to history, policy and the Australian psyche: for a complexity of reasons the non-Aboriginal population has, in the mass, been nurtured on active and passive ideas of racial superiority in relation to Aboriginal people and which sit well with the policies of the domination and control that have been applied.1

The stories of the oldest living cultures in the world are worthy of being told, and respected. In fact, our Continent is one highly prized by International tourists who come to visit the land we have sustained and its First Nations peoples. Our history since settlement has been extremely traumatic for Australia’s First Nations peoples. The silencing of our experiences since invasion, fail again to be mentioned or appreciated in the happy and joyous settlement story. Settlement is celebrated on the very day that brought to our shores murder, mayhem and dispossession. For Indigenous Australians this socialisation is harmful as it silences our stories, our connection to our countries and our stewardship of a healthy continent. It also prevents our counter story being told. Again these ways of knowing and being in Australia inform or misinform Australians ways of doing towards a people they know very little about. Unfortunately this is the way colonisation had played its game of authenticity, silencing and worse dehumanising the Indigenous subject, a subject of the crown, creating hostilities through policy and law to, psychologically remove us from our countries, making us invisible via incarcerating us in missions, reserves and prisons. As an Aboriginal woman who has worked in the area of health, education and social justice over the last 30 years I have observed and responded to the ongoing injustices that target our peoples. This is often in the vac Royal Commission into Aboriginal Deaths in Custody (1991), p. 10. http://www.austlii.edu.au/ au/other/IndigLRes/rciadic/ and http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/ vol5/5.html 1

 Foreword 

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uum of what is often stated, that our unjust circumstances are our fault. This general assumption is regularly articulated by the media and our naïve and ill-informed politicians. Their rhetoric only reinforces the general and again misinformed mainstream Australian population to argue that we deserve somehow to be targeted by an agenda that is inequitable and divisive. Why do we live today in places where our First Peoples, who have been named and shamed as Indigenous, fill our prisons and juvenile detention centres? Their numbers each year continue to rise rather than decline. The systems that set up the conveyer belts to these end destinations fail to question or reflect upon these anomalies. Is this because they remain ignorant or do they aim to perpetrate ongoing colonial power that creates a deficit Indigenous criminal. We think so. Turning criminology upside down involves rethinking: what is a crime? And who are the real criminals? This book challenges the colonial epistemology of one truth and explores the expertise of First Peoples of Australia and their ways of knowing, being and doing regarding their experiences, circumstances and unfair treatment. Our way is to remind those that we are sovereign peoples who hold sovereign status of methodologies that relate to us and how we deal with the continuing colonial state. We have often been impoverished and deprived of voice, income and resources through illegal settlement, by trespassers whom stole our wealth, health and opportunities to build income and wellbeing. Purposely ensuring that we remain unable to financially argue or adjudicate our status or circumstances. This is a strategy that is firmly held by colonial justice systems to further legitimise their power of force and create inequity. These models have silenced us and harmed us. The Australian criminal justice system does not deliver justice for Aboriginal and Torres Strait Islander peoples. Being interned into a prison does not deliver healing, education or wellbeing. Instead it ensures you are at greater risk of being incarcerated for any misadventure because of the overt over surveillance. It ensures you will be disconnected from your family, children and culture. It extends the trauma of being dislocated from communicating with children, partners, family and community. It fails to provide vital health strategies for dealing with addiction, Inter-­ generational trauma and inter-personal violence.

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We must wait until we leave this system to attempt to find a pathway for this healing. I have encouraged my peers to be respectful and utilise Indigenous centred approaches to research to enable our voices, knowledges and experiences to create spaces for our perspectives and worldviews to form practical solutions for us, enhancing our opportunities for wellbeing through having a model or strategy built by us instead of over us. This book is about creating such opportunities for us to turn criminology on its head and deliver outcomes that are relevant to our peoples. Professor and Associate Dean in the Faculty of Health and Medicine University of Sydney Camperdown, NSW, Australia

Juanita Sherwood

Acknowledgements

We thank the researchers who have worked on projects with us and shared rich discussions that have contributed to the ideas in this book, including Juanita Sherwood, Larissa Behrendt, Vanessa Davis, Denise Foster, Alison Whittaker, Michelle Toy, Gemma Sentance, Ellen O’Brien, Elena Marchetti, Craig Longman, Kieran Tranter, Peter Tryfonopoulos, Mike Grewcock, Paddy Gibson, Kimberly Chiswell, Robert Chapman, Will Crawford, Dorinda Cox, Victoria Hovane, Tamara Tulich and Dorothea Anthony. We especially appreciate the fantastic editorial assistance for this book by Ava Hill-De Monchaux and Gemma Sentance. Thank you to our Aboriginal comrades who have shared their knowledge and shown us strength in their everyday resistance and struggles against colonisation and in building resurgence, especially Laura and Bianca Lyons,  Annette Gainsford, Eddie Cubillo, David Bell, Ken Canning, Bronwyn Penrith, Elizabeth Jarrett, Nessa Turnbull-­ Roberts, Jenny Munro and the Voller family. We thank Juanita Sherwood for her generous foreword; for all she has taught us (in central Australia and the back streets of inner-Sydney) and continues to teach and share with us; for her activist and fighting spirit; and for her friendship. Our collaboration with Juanita Sherwood as an investigator on our Australian Research Council Discovery Project, Regulation of Indigenous Safety Strategies: Night Patrols and Policy, and our xi

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researchers, especially Vanessa Davis and Denise Foster from Tangentyere Council, has strengthened the observations in this book. We send out a huge appreciation to the amazing Aboriginal organisations and their staff from Sydney to Perth, Warlpiri Country to the Kimberley, who have generously collaborated with us. To name just a few Tangentyere Council, Kimberley Aboriginal Law and Cultural Centre, Nyoongar Patrol, and numerous Aboriginal legal and health services and land councils. Thank you to our families who fill hearts and our cups: Gilly, Mark, Rosemary, Markus, Spiro, Dora, Mary, Kristin, Peter and Katerina. Thalia sends a special acknowledgment to her παππού, Thomas Costa, who shared his stories of growing up in Cyprus under British colonial rule. In lively detail he described colonisation as “the worst kind of exploitation”. He said this while Thalia was editing this book by his beside in Balmain Hospital, level 4, room 13. Just before it was done, παππού looked around and said, “I hope your book isn’t as depressing as this hospital ward!” She is not so sure. Thalia also pays tribute to her family from northern Cyprus, on her late παππού Peter Anthony’s (Hatziantonis) side, who continue to be dispossessed by Turkish colonial rule. Throughout this book, we have reproduced some of our writing and ideas as they relate to postcolonial and post-disciplinary perspectives in criminology; applications of Agamben’s “bare life”, the “camp”, “zones of indistinction” to the settler colonies; Indigenous automobilities, Night Patrols and critiques of the Global North’s mobility paradigm based on “space and flow”; and “hybrid justice”, “two-way law”, sentencing and Aboriginal Law and Justice planning. Our publications relating to these themes are referenced in the body of the book and in the reference list.

Sensitivity Note

This book raises tragic issues affecting Indigenous people, including massacres, torture, deaths in custody, segregation, the stealing of children and land. Some of these happened a long time ago and many are still happening today. We warn readers that the stories within this book may cause or trigger trauma. This book refers to Aboriginal and Torres Strait Islander people who have passed. Many of these passed prematurely at the hands of the criminal justice system.

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Contents

1 Introduction: Turning Criminology Upside Down  1 2 Postcolonial Criminology: “The Past Isn’t Over…” 31 3 “Who Speaks for Place?” 55 4 Decolonising Criminology Methodologies 79 5 Borders Are Strange Places: Borders of the State to Boundaries of the Prison 97 6 Restorative Justice or Indigenous Justice?133 7 Disciplinary Power or Colonial Power?153 8 Justice in the Shadow of the Camp177 9 Carceral Feminism: Saving Indigenous Women from Indigenous Men203 10 Hybrid Justice (i): Indigenous Sentencing and Justice Planning245 xv

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11 Hybrid Justice (ii): Night Patrols and Place-Based Sovereignty279 12 Conclusions: State of Exception and Bare Life in Criminology and Criminal “Justice”319 References331 Index387

List of Figures

Fig. 5.1 Colonial Frontier Massacre map 1788–1872 (Eastern Australia) (Centre for 21st Century Humanities 2019) Fig. 5.2 Map of missions, government stations and reserves 1883–1969 (AIATSIS 2018; Horton 1994)

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List of Tables

Table 1.1 Turning Criminology Upside Down: Epistemological and methodological differences between positivist and postcolonial/post-disciplinary criminology (adapted from Anthony and Sherwood 2018) 22 Table 9.1 Carceral feminist criminology versus decolonised criminology235

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1 Introduction: Turning Criminology Upside Down

Decolonising Criminology This book undertakes an exploratory exercise in what we call postcolonial criminology; by which we mean criminology that places the colonial matrix of power at the centre of inquiry. While the substance of the book is concerned with criminal justice in settler colonies, the issues raised have wider relevance as they are concerned with the challenges posed for criminology, and kindred disciplines of the Anglo-sphere, by a new era where racialised forms of social control are reshaping criminal justice across the globe. This era, however, is also marked by the growing strength and resilience of countervailing forces from outside the Anglo-sphere who are intent on dismantling colonial structures of power. We refer to postcolonial analysis in terms of moving beyond the Global North’s colonising analysis, predicated on regimes of imperial truths, claims to neutrality and universality and its focus on the state as the epicentre of power. We draw on epistemologies of the Global South, invigorated by postcolonial thinkers, to identify the pluriversality of power and laws, the active colonial project with its forms of oppression in everyday

© The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_1

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H. Blagg and T. Anthony

Indigenous lives and the location of Indigenous place as a site of colonial contest and Indigenous resistance and resurgence. Criminology, and its kindred disciplines, is accustomed to viewing the Global South—the colonised places—as eternally subordinate to the ideas, innovations, mentalities and grand designs of the Euro-American Global North—the sites of the coloniser. In this frame, the Global South exists—chronologically and developmentally—after us. Its place in the world order—as a “fourth world”—is determined by its lateness and the imperative to “catch up” with the advanced Global North: a process inhibited by the fact that the Global North exists only because of the exploitation of the Global South and the expropriation of its lands, labour and resources. To talk of the Global South is to enter into a theatre of punishment, oppression and violence. The expressions “Global North” and “Global South” do not relate to rigid geographical terrain, they signify two distinct though entwined and enmeshed worlds: one world colonised in violence and suffering acutely from forces of global capitalism and imperialism (de Sousa Santos 2008); and the other enjoying economic, social and cultural hegemony. There is a Global North in the geographic south (white settlers) and a Global South in the geographic north (migrants, ethnic minorities, Roma, the “precariat”) (Standing 2011), the hyper-marginalised, and the “interior Third World” (de Sousa Santos 2004, 315). This relationship between North and South, while not exactly becoming inverted, is being tested by the emergence of competing centres of power and the (relative) decline of Western hegemonic authority. It is also being challenged in societies such as Australia, Canada, the United States and Aotearoa/New Zealand by forms of Indigenous1 resurgence which call into question the settler state’s claims to undisputed sovereignty. Furthermore, Euro-modernity’s darker machinations manifest in its tendency to cynically shelve its normative commitment to the rule of law and human rights when confronted by “problem” populations overseas or, increasingly, at home. Discussing the “non-penal” detention of migrants and refugees in Europe, Dario Melossi sees a reconnection with a global “heritage  We employ the word Indigenous to refer to colonised people generally. However, where possible we refer to the nations of specific peoples (e.g. Warlpiri (central Australia), Sami (northern Europe/ Russia)), or appropriate terminology for broader cultures, for example, “Aboriginal for mainland Australia”; “First Nations” for relevant Indigenous nations in Canada. 1

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of colonial domination” and fascism (Melossi 2012, 381). Melossi also acknowledges the relevance of Giorgio Agamben’s work on the genealogy of “the camp” and “the state of exception” (2012, 381) in understanding the trajectory of penal/judicial policy in the Global North (Agamben 1998). This neatly summarises a key thread in this book (see especially Chaps. 5 and 8). As neo-liberalism continues to erode the foundations of the welfare state in the Global North and its hegemonic consensus, resulting in the increased casualisation of the labour market, sharpening disparities between rich and poor, and destruction of the living wage; it is creating the kinds of total destitution, insecurity and instability of life characteristic of the Global South. This era of insecurity has fuelled white supremacist politics in Europe and North America, which is gaining momentum in parliament and on the streets. The cities of the North host beggars and vagrants, the homeless and unwaged, the sick, the disabled and mentally unwell and, most despised of all, the undocumented alien. Marginalised children in the Brexiting UK (the movement itself fuelled by delusions of Imperialist grandeur) are fed from food banks. Europe has also seen the rise of widespread anti-racist protest and resistance once a feature of the South. The rise of popular, anti-austerity movements in Europe and citizens coalitions against state violence (such as Momentum in the United Kingdom and Black Lives Matter in the United States) testify to the emergence of forms of grass-roots activist politics once synonymous with the Global South (Comaroff and Comaroff 2012a, 71). In recent years, issues raised by opponents of migration (due to the presence of the Global South in the geographic North) have seen “colonial hysteria” (Galeano 1997) about mixedness, boundaries and cultural miscegenation migrate from the imperial periphery to the metropolitan centre itself. This is reflected in the surge of anti-­ immigrant and anti-Muslim populist movements and parties, such as UKIP in England, Pegida in Germany, Golden Dawn in Greece and the Alt-right in the United States; the resurgence of virulent anti-Semitism (paradoxically promulgated by groups adamantly supportive of the state of Israel), widespread Islamophobia and systemic discrimination against Roma peoples, who remain subject to a form of internal colonisation (Ponzanesi and Blaagaard 2012). Europe, it seems, is not being spared its own “postcolonial moment” (Gilroy 2011).

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Critics ominously observe “new forms of inclusion and exclusion based on linguistic, racial, ethnic and religious divisions” (Ponzanesi and Blaagaard 2012, 3), where the punitive instruments of criminal justice are used to manage unwanted populations who have committed no crimes (other than that of being subordinate in an Imperial-capitalist world), as much as to punish “offenders”. We suggest that none of this is new (just new to the internal machinations of the Global North) and what we have described here is strongly reminiscent of the use made of criminal justice institutions to warehouse the dispossessed of the Global South. These developments should encourage critical intellectuals in the Global North to consider the colonial experience when attempting to theorise contemporary social conflict. Frantz Fanon (1991), Albert Memmi (1965) and Hanna Arendt (1966) reveal how techniques of repression were first tested out and perfected in the colonies, before being repatriated to Europe. Zygmunt Bauman (1991) illustrates how these repatriated techniques, combined with the most advanced forms of planning and technology then available, consummated the marriage of European racism and industrial modernity by exterminating Europe’s Others (Jews, Roma, homosexual people). The colonised world provided a set of master patterns for use in the metropolis: in this respect genocide and repression in the South prefigured that in the North. As Bhambra and Holmwood (2018, 575) suggest, a “deeper historical sociology of coloniality can provide a more adequate understanding of the trajectory of European and other advanced welfare states than that which is provided by standard approaches”. They can equally inform us of the dangers of the nation state’s penal apparatus, including for so-­ called protective purposes. For instance, in Chap. 9, we point to carceral feminists attempting to apply this lens to men in order to save Aboriginal women. One unforeseen consequence is the imprisonment of Indigenous women for breaching Apprehended Violence or Protection Orders that were intended to “protect them”; another one is the diminution of local Indigenous women’s capacity to provide a place-based response to the wellbeing of their women and the relative empowerment of the state and law enforcers in the lives of Indigenous women. That colonial modalities of social exclusion would re-emerge in the metropolitan centre rather than just the imperial periphery was foreshadowed in

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the works of Franz Fanon (1991) and Hannah Arendt (1966). Etienne Balibar spoke of a burgeoning “European apartheid” (2004, ix) where multiple borders are being constructed within, as well as on the boundaries of, nation-states, that are ideological, racialised and politicised. This continuous process of bordering involves an array of “affective and trans-formative material processes in which social and spatial orders and disorders are constantly reworked” (Woodward and Jones 2005, 239). Increasingly, the capacity to be mobile and traverse borders is not uniformly distributed, but stratified between rich and poor, east and west, centre and periphery; with the mobility of particular groups restricted and/ or criminalised (Pickering and Weber 2013a, b; Bosworth and Guild 2008). Mobility anxiety in the Global North has stimulated a “ubiquity” of new borders (Balibar 2002, 84), as the Global North fortifies itself against its enemy at the gate through what Rumford (2006, 157) calls “processes of securitized rebordering”. The globalisation of neo-liberal economic philosophy is transforming the social relationships across the Western world. Solidarities once based on shared class experiences in Europe and the UK have reconstituted themselves around race and ethnicity, as the popularity of anti-immigrant and refugee parties amongst working class communities attests. This kind of solidarity was always a feature of the white working class in the colony, who tended to have a highly developed sense that their interests lay in maintaining their privileged status as white settlers. The notion of the border as something mutable, fluid and transportable, rather than fixed in place—capable of being rapidly erected in new sites, and, as quickly, dismantled and where the state, in a sense, surrounds as much as expels the unwanted, is not a new one in the life of the postcolony. This is exactly the way Frantz Fanon (1986, 1991), Albert Memmi (1965) and Aimé Césaire (2000) and, more recently postcolonial theorists such as Achille Mbembe (2001, 2003), describe daily life in the colony. As we discuss, the fluid, mobile border is a threshold to a multiplicity of sites of exception and indistinction. The resources of the criminal justice system in Europe are becoming steadily consumed in warehousing and detaining, mobilising and immobilising the undocumented and unwanted, rather than adjudicating guilt or innocence. This tests the boundaries of criminology and threatens its existence as a science of criminality.

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 he “Innocence” Project: Redeeming White Settler T Criminology These transformations have not gone unnoticed in the academy. They have forced criminologists to discover the existence of the Global South as a distinct field of inquiry. This has stimulated a flurry of work produced to ensure that this discovery does not disturb the orderly criminological status quo and its cherished core concepts. We adopt a sceptical stance about the purposes of the “southern turn” in criminology. A reading of the, admittedly patchy literature in this field leads us to conclude that it is less intent on creating new paradigms of theory and research than in shoring up the creaky foundations of Euro-modern social science and defend its relevance. We view attempts to create “criminology of the south”—coined “southern criminology”—as a defensive reflex, designed to exonerate Anglo-spheric theory from complicity in epistemic violence, rather than equipping criminology with the tools required for a progressive alliance with Indigenous nations and colonised peoples. We read in this work an attempt to re-centre the privileged, foundational categories and theories of the northern hemisphere, under threat from the postcolonial and decolonising impulses of the non-European world, demonstrating, once again, criminology’s “control freak” tendencies (Agozino 2010, ii, vii, xv). Rather than reconciling the North to the South, as proposed by southern criminology, we seek to decolonise the North. We contest southern criminology’s premise that, despite the challenges posed by the existence of the Global South, the same old stock theories and methods, with a few exotic embellishments, remain serviceable. This inevitably means that the foundational experiences that created the Global South—violent subjugation by the Global North and the ­decimation, enslavement and destruction of its people—are accorded no more status than the experiences that shaped modernity in Euro-north America. We are concerned with criminal justice as it forms part of what Anibal Quijano (2000, 2007) and Walter Mignolo (2007, 156) calls the “colonial matrix of power”, employed historically as a tool of dispossession and control, and part of a larger project of sovereign extinguishment and coercive assimilation. It is not another text about Indigenous deficits

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and deficiencies, where colonisation is gestured at as a regrettable feature of the distant past, before being dismissed as having marginal relevance to the present, or simply another condition with no greater explanatory significance than age, gender or class. As we take great pains to reiterate, the colonial present is characterised by recurring processes of dispossession, criminalisation and brutalisation, as persistent (and destructive) as at any earlier stage of white settlement. Whiteness constitutes that “invisible package of unearned assets” (McIntosh 1989, 1) or “wages” (Roediger 2005) unacknowledged by the bearer. “Whiteness”, and its multi-faceted privileges, has special resonance in settler colonial societies where it still represents the unspoken norm against which the Other is measured and found wanting. “Whiteness” under conditions of settler colonialism is inseparable from the possession and execution of sovereign power. The conservative philosopher Carl Schmitt’s (2004, 5) memorable statement, “sovereign is he who decides the state of exception”, demonstrates that law and lawlessness are inextricably meshed together; part of a repertoire of strategic moves of sovereign rule, rather than unrelated opposites. Sovereign power, even in Western democracies, involves capacity to suspend the rule of law, at particular times, in particular places (Arendt 1966). The colonial matrix of power requires excessive use of sovereign rule in the Global South. The sovereign, simultaneously within and outside of the law, determines this state of exception. Walter Benjamin (1978, 257) observes that this state is the norm in late modernity, “the tradition of the oppressed teaches us that the ‘state of emergency’ in which we live is not the exception but the rule”. In their dealings with Indigenous people, white settlers exercise dominance through law and through its exception, especially the exception applied to the Indigenous Other who is both assigned c­ riminality and deprived of criminal law’s protections. The uniqueness of settler colonialism lies in the degree of white settler sovereign power over the Indigene. One can make sense of, admittedly fringe, anti-government, movements like the “Sovereign Citizens” in the USA (with small outposts in other settler colonial states) and current white vigilantism in rural and remote Australia (Cunneen and Russell 2017) by reference to inherited white sovereignty. Any holistic theory of the settler colonial state has to adopt a view of Western nation building as a process

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driven by different impulses than those defined in Western social sciences. Beyond class, gender and diasporic ethnicity, solidarities around culture and race have tended to shape social systems and generate specific structures of sentiment and feeling in settler colonies.

Everyday Cruelty Like horse and carriage, the history of colonial settlement is the history of Indigenous dispossession. We can’t have one without the other. The colonial settler state was founded not merely to economically and militarily control the colonised territory, but also to ensure the elimination of Indigenous people and its replacement with Europeans. This dispossession has required a mix of repressive governmentality and violence: [T]he history of the ‘protection’ of Australia’s Indigenous peoples is patterned with the governmentalities and biopolitics of power—the legislations, the definitions, the surveillance—and continual forms of material violence which have combined to keep Indigenous people’s inside detention—in reserves, on islands, in gaols—and outside—away from the wider/ whiter community. (Tedmanson 2008, 149)

Mainstream criminology has remained largely silent on the colonial violence that was inflicted on Indigenous peoples and communities and how violence towards Indigenous people continues to underpin the state and “civil society” (a liberal imaginary, like the “public realm”, that consistently excludes Indigenous people). It has persisted in its indifference to the everyday cruelties of settler colonisation, while obsessed with the criminogenic nature of the Indigenous Other (Tauri and Porou 2014). Only recently have criminologists and other scholars come together to designate violence against Indigenous people as “state crime” (see the special edition of State Crime on “State Crime and Colonialism”: Grewcock 2018). Even “critical” criminology, in the main, has been complicit in denying the specific nature of Indigenous oppression, by implicitly presenting Indigenous “issues” in terms of Indigenous disadvantage and discrimination—like any

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other marginalised or excluded group—rather than dispossession and colonisation. Criminology must acknowledge the distinctiveness of Indigenous claims and experiences and not attempt to fit it into established Western categories, whose epistemology runs counter to Indigenous ways of knowing. Wiradjuri scholar and activist, Professor Juanita Sherwood (2010, 54) notes that Aboriginal people are “invisible” in the process of “doing research on Aboriginal people” because such research is “so embedded within the culture of the Academy” that rests on assumptions of neutrality and universality. Tim Rowse (2011, 229) coined the term “global indigenism”, which acknowledges Indigeneity as a “distinct form of human experience”. It is an experience shaped in the modern era by colonial dispossession and genocide, as well as Indigenous refusal, resistance and resurgence. It is characterised by distinct worldviews and practices that are not simply incompatible with Western approaches, but nullified by Western knowledge in its claim to universal objectivity and scientism. These claims are made by criminology, including in many of its more “progressive” guises. The trajectory of Indigenous activism is towards decolonisation, and the return of sovereignty over land which, as Rowe and Tuck (2017, 7) suggest, remains “‘incommensurable’ with human and civil rights projects as some elements of these processes cannot be aligned”. This statement may come as a shock to activism from the North, which has elevated Western human rights as the sine qua non of human progress in the world. Indigenous rights activism, locates the return of stolen land and reparations for crime against the Indigenous collective at the forefront of its demands (e.g. Alfred 2005; Coulthard 2014a; Sherwood 2010, 64; Behrendt 2003) whereas human rights activism would consider these to be secondary to individual rights and liberties.

The Nation State One aim of our work is to challenge some taken-for-granted beliefs about the solidity and naturalness of what are essentially socially constructed phenomenon. Despite Benedict Anderson’s (1983) universally celebrated statement that nation states are “imagined communities”, much criminology still continues to treat the nation state as a unified entity, rather

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than something constantly being articulated through various strategies of power. Comparative criminology in particular has tended to take the nation state as an unproblematic point of departure for criminological and socio-legal research: comparing country A with country B’s rates of imprisonment, for example, and creating typologies of national tolerance, victimisation, or punitiveness on this basis (see e.g. Cavadino and Dignan 1997). This places criminology a long way behind global critical scholarship that increasingly questions the veracity of comparative study centred on the nation state alone. In “league table” criminology, societies such as Australia, Canada and Aotearoa/New Zealand often emerge as low- to mid-level imprisoners, provided that we entirely exclude racial differences in imprisonment, and simply focus on how the state treats the mainstream white population. If we do this, then colonial settler societies appear egalitarian, even enlightened. However, this glosses over the fact that they imprison their Indigenous populations at rates higher than the imprisonment of African American people in the USA (Blagg 2016). Indigenous Australians are the most incarcerated people in the world by percentage of their population (2346 per 100,000), which is higher than the heavily criticised African American incarceration rates (2207 per 100,000) (Anthony 2017). Across settler colonies, prisons are racialised places where Indigenous presence is highly disproportionate to their general population: in Australia, Indigenous people make up 28% of the adult prison population (Australian Bureau of Statistics 2018, hereafter “ABS”); in Canada 28% (Malakieh 2018) and in Aotearoa/New Zealand 51% (Department of Corrections NZ 2019). Postcolonial critique, whose lineage dates back to the work of Edward Said, Gayatri Chakravorty Spivak and Homi Bhaba, and owing much to the works of Frantz Fanon, Hanna Arendt, W.E.B.  Du Bois and C.L.R. James, offers a necessary counterweight to the dominant Euro-­ north American paradigm of comparative criminology by focussing attention on social forces operating above, below and outside the Westphalian nation state. They have been considerably strengthened by the intervention of writers on coloniality from South America (such as Quijano 2000, Mignolo 2011) and compatriots in southern Europe (such as de Sousa Santos 2008 from Portugal).

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Temporal Bracketing A postcolonial stance offers a dynamic new vantage point from which to critique criminological debates. To begin with it challenges what Hussain (2003, 23) calls “temporal bracketing”, where the Global South is viewed through the time frames, historical stages and “fundamental politico-­ legal changes in the West”. We are critical of this in relation to David Garland’s (2001) “culture of control” narrative and “punitive turn” trope (2001, 142), that spans across the Atlantic. They have gained the status of criminological meta-narratives, eliding the temporal specificity of Indigenous colonial experiences and superimposing Western temporalities. Carceral temporalities of the South begin with 1492 and successive stages of colonisation. Settler colonial histories begin with invasion and the creation of settler colonial policy directed at dispossession, from genocide to assimilation and criminalisation. We have been guided by a number of perspectives and theories generally ignored, or misunderstood, by criminologists of the Global North. We take our lead from a range of writers from South America, among others, whose approach to theory has been developed in the context of Indigenous genocide and resistance. Our premise is that there needs to be a paradigm shift in relation to criminological inquiry (Agozino 2018). Indeed, we believe it essential that criminologists and socio-legal scholars embrace a post-disciplinary epistemology: one that tests the boundaries of the discipline and deliberately sets out to construct hybrid theories and practices that transcend them (see Chaps. 10 and 11). The relevance, even survival, of criminology as a field of study may hinge on its capacity to move outside its comfort zone and mesh with other disciplinary assemblages. As Jenny Wolmark and Eleanor Gates-­ Stuart (2004, 1) observe “the capacity to move reflexively between cultural practices and across discipline boundaries is central to the development of a more expansive research culture”. We would only add to this the view that some necessary repositories of knowledge currently lie outside the borders of acceptable “disciplines”. For example, Indigenous Knowledges have only recently gained credibility in scientific and social research, although not without its challenges (Sillitoe and Marzano 2009).

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Working from within a decolonising framework requires a large degree of “disciplinary disobedience” (Mignolo 2011): listening to the voices of Indigenous peoples, hearing stories of Indigenous experiences of past and present colonial encounters, giving credence to Indigenous initiatives and resurgence activity, and engaging with Indigenous methods for conducting research ground-up, with respect and eschewing Western assumptions  (see Porter 2016, 562). This requires that we engage in a “deep listening” of Indigenous storytelling (Atkinson 2002) and weave these stories into national narratives about history and change, which as Canadian First Nations scholars Jeff Corntassel, Chaw-win-is and T’lakwadzi (2009, 137, 139) explain, is crucial for the “political resurgence of Indigenous nations” in settler colonies and the “ongoing struggle for Indigenous justice and freedom”. A decolonising framework requires that we give Indigenous Knowledges a privileged place in research by empowering Indigenous communities, and building alliances between the academy and the “Indigenous domain” (von Sturmer 1984, 219, see Chap. 2) that allow the voices and priorities of the latter to determine the trajectory of research. The study of crime and justice in the Global South requires engagement with a range of perspectives not considered relevant in the Euro-­ sphere. David Downes (1983) referred to criminology as a “rendezvous” discipline, yet it has tended to be choosy in terms of who it rendezvous with: the choice of suitable partners generally restricted to those on adjoining corridors in the northern academy (sociology, law, economics, psychology and so on). Our work is concerned with encouraging criminologists to explore the other side of the campus (cultural studies, Settler colonial theories, Indigenous studies, environmental studies, political geography, international relations, health and education), and to get off the campus altogether (and enter the realms of activism, community building, social movements, land care, arts, music, theatre and media). Disciplines tend to develop a framework of power/knowledge through association with a particular assemblage of structures and institutions. Criminology emerged in symbiosis with the police, courts, clinics, prisons as well as the nation state in the Global North, and the assembly of institutions that surround it, or provide an alternative to it—the “alternative”, of course, only serves to strengthen the legitimacy of state control and confinement as the ultimate option (see Chaps. 6 and 7). Any discussion

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of penal “abolitionism”, therefore, must be accompanied by discussion of the abolition of criminology itself—a discipline that has done so much to normalise prison as an acceptable and necessary component of any justice system. Imagining a post-incarceration society requires a post-­disciplinary imagination. Our aim is to contribute to a form of criminology more capacious and inclusive than the Western canon. Criminology in the settler colonies reinforces notions of crime, criminality and risk, and the penal, rehabilitative or restorative apparatus of the criminal justice system, with a particular role in maintaining colonial relations, discourses and strategies. It undermines notions of Indigenous Justice that promote Indigenous strengths and ways of knowing, being and doing (see Chaps. 4 and 6). Criminology focuses on Indigenous deficit as a vehicle for governing, inferiorising and controlling sovereign Indigenous peoples. Its disciplinary purpose is two-fold. On the one hand, criminology seeks to discipline through controlling its objects: offenders, prisoners and at-risk persons. On the other hand, criminology seeks to enforce disciplinary boundaries through generating and perpetuating knowledge centred on police, courts, corrections, prisons and risky individuals deserving of state punishment. Foucault’s (1977, 181) exposition of disciplinary knowledges explains that they are exercises of disciplinary power, which regulate individuals through regimes of truth. Criminology is not only no exception, but is an exemplar of the exercise of disciplinary power. Criminology is not adverse to the “possibility of formulating new propositions ad infinitum” (Foucault 1981, 59). In fact, new adaptations are crucial to its longevity, so long as they do not provide a counter-­ knowledge. In conducting research, criminologists, like other “disciplinary experts”, self-police the borders of its discipline through reinforcing its discourses and rules over and over again, including in publications, at conferences, in law reform conversations and through public reporting (Foucault 1981, 60–61). The truths of Criminology are embedded with Western concepts of individual wrongs and the maintenance of “rights”, especially the righteousness of white privilege. Change must occur not through new propositions but through different truths, including truths about its own complicity in the colonial project.

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 hallenging Criminology: A Post-Disciplinary C Turn Our challenge to Criminology is not simply about refining or extending its disciplinary boundaries, but about adopting a post-disciplinary approach that unsettles them. Post-disciplinary research has a growing recognition in the academy, with regular conferences on the topic. Their keynote speakers have included, in 2018, Mãori professor Linda Tuhiwai Smith (1999), who demonstrates that the development and refinement of Western disciplines has hinged on the dehumanisation of Indigenous peoples and appropriation of their worlds and worldviews for scientific analysis. She enunciates the symmetry in academic disciplines that structurally collude to oppress Indigenous peoples (Smith 1999, 7–8, 11, 58–59, 65–69). In Disciplining the Savages, Savaging the Disciplines, Torres Strait Islander scholar, Martin Nakata (2007) argues the need to look outside of the disciplines in order to connect with Indigenous Knowledges and understand cultural and colonial relationships. Post-disciplinary studies progress a critical alternative to Western disciplinary knowledge and methods, and dismantle its ways of knowing and doing. We propose a post-disciplinary approach that is decolonising in its focus (see Chaps. 3 and 4). What we are seeking is to develop research that recognises alternative epistemologies, ontologies and methodologies, and places Western knowledge systems in the sociohistorical context of imperialism. Critical Indigenous movements in South America employ the term coloniality to describe how colonialism provided the logic for the ascent of “western civilisation” since the Renaissance (Mignolo 2011, 2). This kind of thinking offers a counterpoint to mainstream preoccupations with improving Western disciplinary practices and thinking. We adopt a decolonising approach that attempts to resist established knowledge systems in our disciplines or multi-disciplines, and instead be responsive to Indigenous research priorities and needs for change as well as their channels for change, including by strengthening Indigenous research capacities, organisations, healing strategies and self-­determination in research. It does not deny that at the front and centre of concerns may

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be criminology’s concerns (or at least critical or counter-criminology’s) with over-policing, deaths in custody, practices of torture in youth detention, but it also does not limit its inquiry or methods to criminological frameworks. Much of the literature on the over-incarceration of Indigenous peoples, for example, decontextualises the issues as anomalous features of a system that could, with some fine-tuning, produce different outcomes. As always, the solutions to the problems created by the logic of modernity—its instrumental rationality, its faith in progress, its constant upheavals—is more modernity: centralisation, liberalisation, technology, risk management, individualisation.

Over-Representation? To speak of over-representation is to infer that the mass imprisonment of Indigenous peoples in Australia, Canada, Aotearoa/New Zealand and the United States (38% higher than the national average) is an aberration, reflecting what one critical high-level Australian Government inquiry referred to as a “broken” justice system (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011). Viewed through a postcolonial lens, however, the “hyperincarceration” (Cunneen et al. 2013) of Indigenous people is no abnormality; nor is it an unintended consequence. It is the logical extension of several centuries of policies, laws and practices designed to complete the dispossession of Indigenous people as bearers of Indigenous sovereignty. The system, from this perspective, is not “malfunctioning” but fulfilling the role set out for it under settler colonialism. It is an outcome of deliberate intervention by the settler state. It makes no sense to speak, therefore, of some “normal”, or acceptable level of involvement in what Indigenous people view as an alien white settler justice system, which has been imposed from the outside, without Indigenous consent, and despite the fact that Indigenous people were already subject, and obedient, to a set of existing laws: their own. The belief that settler justice systems urgently need to be decolonised, rather than simply reformed, or democratised, is gathering support within contemporary criminological and socio-legal debate. It would be

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unwise, however, to exaggerate the scale and density of the decolonising turn in criminology, which is noticeably less pronounced than in other disciplines such as health, education, sociology, political science, social work and psychology. In these other disciplines, discussions regarding the pervasive influence of colonisation on epistemology, institutional structure and practice have been active for some time. A new generation of theories, including settler colonial and postcolonial theories, Indigenous theory, Critical Race and Whiteness Studies, are gradually, if unevenly, embedding themselves into the criminological landscape of the antipodes, unsettling its subservience to trends, theories and practices radiating from the Imperial centre. Postcolonial critiques are becoming more influential in the field of criminology (Oriola 2006; Cunneen and Tauri 2016; Cunneen 2011; Blagg 2012, 2016; Anthony and Blagg 2013; Anthony and Sherwood 2018; Goldsmith and Halsey 2013). Criminology must centre persistent settler colonial relations and its racialising manifestations in the Global North as its defining problem and work to transform relationships between coloniser and colonised, if it is to claim relevance in coming years. We see this later task as the litmus test for a relevant criminology. Left unaddressed, this refusal will eventually create a crisis of legitimacy at the level of theory and practice.

Colonisation: A Process, Not an Event In this book we identify new directions in decolonising practices in the Global South, however, given that north and south are inextricably enmeshed, it is conceivable that these transformations will and should have repercussions and consequences in the Global North. Patrick Wolfe (1999) argued that colonisation is a dynamic structure and process, rather than an isolated event. We need to remain alert to its corrosive influence on the present and how colonial strategies of dispossession, extinguishment and enforced mobility continue to shape government and white community attitudes and practices (see Agozino 2018). Similarly, putting an end to colonialism itself must be a process rather than an event. We eschew binaries, that play out in colonisation, in advocating for a decolonising agenda. Rather than decolonisation reproducing the “us versus them”, it focuses us

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on the space in between and resurrecting Indigenous sites of power (Alfred 2009, 182). Decolonisation, we maintain, needs to be viewed in terms of building alliances across the divide and identifying fresh, decolonised, engagement spaces between Indigenous and non-Indigenous peoples. We are not suggesting that western sociological and criminological theories have no applicability, but they cannot provide the tools for a decolonising practice because, with some exceptions, they lack a language to describe the centrality of colonial relationships. It makes no sense, as Juan Tauri (2018) suggests, to just employ the master’s tools to disassemble the master’s house. The instruments for this largely need to be imported from outside these frameworks, and include forms of knowledge generally considered marginal or peripheral to criminology. We consider it essential to centre the place-based knowledge of Indigenous people as an alternative to the commodified and homogenised knowledge of the Global North, and promote Indigenous resurgence (see Alfred and Corntassel 2005, 610; Corntassel 2012; Alfred 2005).

A Radical Agenda We provide a radical agenda that collapses the colonising relationship between the Global North and Global South. Unlike, for instance, the contemporary southern criminology project (see Carrington et al. 2016, 15), which critiques the North’s influence over criminology and criminal justice practices, and advocates the creation of skill-sharing hubs to break down barriers between the North and South and “democratise” criminology, we perceive that the project of the Global North is antithetical and irreconcilable to that of the Global South. This is because the Global North exists because of subordination of the Global South. The relationship needs to be decolonised not democratised. As Juan Tauri and Ngati Porou (2014) observe, Mãori have been incorporated into the democratic structures of Pakeha for centuries, but this has only served to subjugate them further. Even left-leaning administrations in settler colonial societies are unable to break with origin myths of peaceful settlement and national homogeneity. Decolonisation requires unravelling entrenched patterns of thought. The Global North has set the terms of debate and constructed landscapes

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of meaning that undergird “dialogue” between the Global North and the Global South. Representations of the south as backward, under-­ developed, dysfunctional and criminogenic continue, assisted by the north’s arsenal of economic powers and political influence, to shape the agenda. Fanon (1986) pointed out that the colonial mind-set depended on representing the colonised as incorrigible villains. This has been supplemented with recrafted discourses of the dysfunctional colonised who require the steady hand of northern experts, expertise and order. Unravelling these entrenched patterns of thought requires systemic transformation that decolonises the relationship between North and the South at multiple levels of engagement. Decolonisation promotes, in the words of Alfred (2005, 131), “resurgence” of Indigenous “spirit and consciousness” and “contention with the very foundations of colonialism”. Anything less than a paradigm shift simply perpetuates the dominance of the North and its gaze of power (see Coulthard 2014a). In this respect we consider it essential that we acknowledge what we might call the “Three Rs” of Indigenous decoloniality, these are: Refusal, Resistance and Resurgence.

Creative Hybridity Our book celebrates the flow of hybridity, suggesting that we need a new vision for justice that challenges essentialist cultural cartographies and nurtures new epistemologies and practices. We see creative hybridity as a process driven from below, not instituted from above. It is a radical alternative to criminology that accepts the Westphalian nation state as the only legitimate form of political organisation, uncritically parroting the versions of reality promulgated by Washington think tanks and their political lackies. In particular, we consider it an essential role of post-­ disciplinary criticism to value the Global South as a place where knowledge is created rather than simply consumed: displacing the Eurocentric belief that only the West has the institutions capable of generating enlightenment, its self-appointed task being to disseminate itself globally. We contend that issues believed to be “new” (mass incarceration on the basis of status rather than offending, heavy racial profiling, exclusionary policing, aggressive bordering, denied or enforced mobilities, etc.—e.g. Garland 2001, Pickering and Weber 2013a) are not new at all, just new to us.

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The non-colonised may get a sense of this condition of daily life for many when proceeding to an airport check-in, now an extreme and permanent state of exception, which alienates everyone crossing the frontier, not just the undocumented (Salter 2008). Indigenous people, however, have been subject to the exceptional infliction of penality, state checks and controlled mobility since the inception of colonisation (see Chap. 5). The criminology of the Global North perpetuates ideas that policing at the border and mass incarceration are new to legitimise its own research; demote the ongoing lived experiences of the colonised (which are characterised by violent over policing and mass segregation); and promote “innovative” reforms, such as therapeutic interventions, to return us to the good ol’ days when the incarceration of the non-colonised was not-so-bad.

Postcolonial and Post-Disciplinary Perspectives The book is grounded in case studies from research by the authors undertaken in Australia, Aotearoa/New Zealand and the Americas on a diversity of Indigenous innovations and laws that respond to issues of concern to contemporary criminology and socio-legal studies. These include decolonised policing, criminal laws practised by Indigenous societies, “court innovations” such as Indigenous courts and Indigenous narrative reports for sentencing, and “hybrid” and inter-cultural forms of justice-­ making, such as Aboriginal “law and justice” agreements and planning. It also brings to bear our methodologies that have provided place-based Indigenous leadership, often in the form of local Indigenous steering committees, in the process of formulating and executing research, and have privileged Indigenous peoples’ lived experiences of the criminal justice system and associated settler colonial institutions and practices. So when we employ a postcolonial and post-disciplinary approach, we are drawing on our research that has shown us the ongoing impact of colonisation in everyday life, the strategies used by Indigenous people to assert and reclaim their self-governance, and the artificiality of disciplinary boundaries in a world where colonisation looms large and the prison is simply one site of control. We are also drawing on our place-centred research methods that have brought into sharp relief the partiality of Western research models and their proclivity to problematise Indigenous people in

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pursuit of the objectives of the settler-colonial state. We nonetheless regard our own research as subject to an ongoing process of decolonisation, where we are constantly breaking down our learned knowledges and practices. We seek out new ways of knowing the world that challenge criminology’s research questions, methods, findings and approaches to dissemination to the academy and government agencies. We also recognise that while inter-disciplinary research is not a necessary pre-requisite to post-­ disciplinary research, it nonetheless will often make sense to draw on several disciplinary branches because this reflects how people live their lives and experience society. Also, post-disciplinary scholars in criminology would find natural allies outside of criminology (including in health, geography, environmental studies, political economy, communication and education) that would help them better respond to likely concerns raised by Indigenous communities in their research. Jessop and Sum (2001, 89) explain that post-disciplinary studies aim to reflect the lived connections between “the natural and social worlds”. Unsurprisingly, criminology has come relatively late to discussions on post-disciplinary approaches because, despite its claims to be a marketplace discipline, its disciplinary inwardness and penal outlook hinder cross- and post-disciplinary dialogue. The reaction against closed categories of knowledge fuelled the development of cultural studies in the 1960s in the United Kingdom and Political Economy (which parted ways with Economics) in the 1970s at the University of Sydney. From the 1990s, the discipline of health, as exemplified in the work of Juanita Sherwood (2013) and the leadership of the Lowitja Institute for Aboriginal and Torres Strait Islander Health Research in Australia, has advanced understandings of the intersections of colonisation, Indigenous justice strategies and self-determination for the health outcomes of Indigenous peoples. Sherwood has developed an approach to research that enlivens these values by working with Indigenous organisations and empowering research by local Indigenous people, including building Indigenous research hubs outside of the academy and major cities. It transcends Western research methods of working for Indigenous people and research conducted by people located outside of Indigenous communities and detached from the lived experiences of Indigenous participants (see Sherwood 2010; Sherwood et al. 2015). These post-disciplinary developments depart from the rationalist and scientific tendencies in disciplines and the assumption of the expertise of

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the Global North in relation to Indigenous people, including expertise in ivory towers, think tanks, consultancy firms (which have a growing role in informing Indigenous policy and service provision) and within governments themselves. We advocate for a grounded understanding of knowledge that advances critical social studies, particularly as they relate to the contingency of culture and place, and for Indigenous Knowledges to displace Western colonial ways of knowing. In accord with postcolonial theory, we centre the colonial matrix of power in our understanding of the knowledge hierarchy. We specifically identify the need for a post-disciplinary approach in and beyond Criminology, which undermines and blurs disciplinary boundaries and knowledge systems. For Criminology, it refocuses attention from Indigenous discipline to Indigenous wellbeing. We seek to recognise the value Indigenous Knowledge systems and methods for Indigenous and non-Indigenous research practices and projects. We need to listen to First Nations and pursue inquiries outside of those demarcated by Criminology and institutional research practices, in order to support and build capacity for Indigenous community strength, empowerment and healing. Pat Dudgeon, a Bardi woman and Professor in Psychology, describes what it involves for researchers to work side-by-side with community in a post-disciplinary way (Dudgeon et al. 2010, 81): [It requires] genuine collaborative and equal partnerships… [to] enable Aboriginal and Torres Islander people to determine the solutions … and greater recognition of research methodologies, such as community participatory action research… [to] ensure that Aboriginal people have control of, or significant input into, determining the Indigenous research agenda at all levels.

In doing so, we break down barriers between language and practice; between researchers and participants. Instead, we recognise that research is practice; Indigenous participants are expert researchers; and institutional researchers can be allies in critical change. Unless we challenge institutional ways of researching, we remain disciplinary: tied to a Western way of looking at the world. In the confines of Criminology, we are tied to a way that looks at the world in terms of the criminogenic risk Indigenous people pose and how this risk can be managed through penal interventions. We ask questions about the crimes of Indigenous people rather than the causes

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of institutional trauma and capacities for well-­being, or rather than the questions relating to the crimes of the state. We measure wrongs in terms of white property and white lives rather than Indigenous Country,2 lives, and knowledge and value systems. This is not inevitable but a set of choices exercised by the Global North and reinforced through the work of criminologists; choices that cannot be reformed but require refusal, resistance and resurgence. Table 1.1, formulated with Juanita Sherwood, sets out our imaginary of a decolonised Criminology. Table 1.1  Turning Criminology Upside Down: Epistemological and methodological differences between positivist and postcolonial/post-disciplinary criminology (adapted from Anthony and Sherwood 2018) Positivist criminology

Decolonised criminology: postcolonial and post-disciplinary

Assumptions

The partial and harmful role of the The neutral role of the colonial settler state’s criminalising state’s criminal laws and apparatus in the lives of procedures in the lives Indigenous people, and the of Indigenous people, subjective nature of positivist and the objective form knowledge and the need for a of positivist criminology plurality of critical and Indigenous knowledge epistemologies

Research questions

What causes the state to offend What causes Indigenous against Indigenous people? How offending? How can the can we fix injustice against state “fix” Indigenous Indigenous people? How can the offenders? How can the risks presented by the state and state manage other hegemonic institutions and Indigenous risk to cultures be managed to reduce uphold social order? harm to Indigenous people? What are the ways in which Indigenous people pursue their well-being and self-determination, and how can this be supported? (continued)

 The notion of “Country” is central to Indigenous ontology and epistemology, which is distinct to Western notions of land (Watson 2009; Moreton-Robinson 2003). Country informs Indigenous relationships between the individual and the group, as well as the broader world. Country is associated with knowledge such as Indigenous laws, past events, legends and cultural ideals (Memmott and Long 2002, 39). 2

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Table 1.1 (continued) Positivist criminology

Decolonised criminology: postcolonial and post-disciplinary

Research focus

The deficit of Indigenous The deficit of the state (especially the problematic of state violence people (identified and harmful criminal justice through offending), and interventions), and the strengths the strengths of the of Indigenous people (to provide state to address holistic strategies for their social, Indigenous problems cultural and emotional and (through a criminal well-being) justice response)

Experts

Criminology researchers in universities and institutions

Ethics

Strengths-based: Focus on Where ethics approval is empowerment, building capacity sought to engage and benefits to community participants (noting the prevalence of deskbased research), there is a deficit-based, riskfocused approach, in which Indigenous people are classified as a vulnerable and/or risky group

Data and analysis

Selective analysis of data only strictly relevant to research questions, and omission of data deemed irrelevant

Data reviewed according to issues raised by local Indigenous advisory groups and Indigenous participants, and analysis reviewed by advisory groups.

Research outputs

Criminology journals; official reports

Information for local Indigenous communities; enhanced Indigenous advocacy and activism

Impacts

Strengthening institutional knowledge and policy reform to improve the state’s criminal justice system

Strengthening Indigenous capacity to produce knowledge and reform that responds to the needs of Indigenous people, including through withering away the state’s criminal justice system (e.g. decarceration) and enhancing Indigenous self-determination

Local Indigenous people affected by state criminal justice processes and experienced in strategies for nurturing Indigenous well-being and self-determination

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References Agamben G (1998) Homo Sacer: Sovereign Power and Bare Life. D HellerRoazen (trans.). Stanford, CA: Stanford University Press. Agozino B (2010) “Editorial: What is Criminology? A Control-Freak Discipline!”. African Journal of Criminology & Justice Studies 4(1): i–xx. ——— (2018) “The Withering Away of the Law: An Indigenous Perspective on the Decolonisation of the Criminal Justice System and Criminology”. Journal of Global Indigeneity 3(1). http://ro.uow.edu.au/jgi/vol3/iss1/2 Alfred T (2005) Wasáse: Indigenous Pathways of Action and Freedom. Toronto: University of Toronto Press. ——— (2009) “Restitution is the Real Pathway to Justice for Indigenous Peoples”. In G Younging, J Dewar and M DeGagné (eds) Response, Responsibility, and Renewal: Canada’s Truth and Reconciliation Journey. Ottawa, ON: Aboriginal Healing Foundation, 179–191. Alfred T and Corntassel J (2005) “Being Indigenous: Resurgences Against Contemporary Colonialism”. Government and Opposition 40(4): 597–614. Anderson B (1983) Imagined Communities: Reflections on the Origin and Spread of Nationalism. London: Verso. Anthony T (2017) “FactCheck Q&A: Are Indigenous Australians the Most Incarcerated People on Earth?”. The Conversation, 6 June. https://theconversation.com/factcheck-qanda-are-indigenous-australians-the-mostincarcerated-people-on-earth-78528 Anthony T and Blagg H (2013) “STOP in the Name of Who’s Law? Driving and the Regulation of Contested Space in Central Australia”. Social and Legal Studies 22(1): 43–66. Anthony T and Sherwood J (2018) “Post-disciplinary Responses to Positivism’s Punitiveness”. Journal of Global Indigeneity 3(1): 1–33. https://ro.uow.edu. au/cgi/viewcontent.cgi?article=1046&context=jgi Arendt H (1966) The Origins of Totalitarianism. New York: Harvest Books. Atkinson J (2002) Trauma Trails, Recreating Song Lines: The Transgenerational Effects of Trauma in Indigenous Australia. Melbourne: Spinifex Press. Australian Bureau of Statistics (2018) “Aboriginal and Torres Strait Islander Prisoner Characteristics”. Prisoners in Australia. Catalogue No. 4517.0. Canberra: Commonwealth of Australia. Balibar E (2002) Politics and the Other Scene. London: Verso. ——— (2004) We, the People of Europe? Reflections on Transnational Citizenship. Princeton, NJ: Princeton University Press.

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2 Postcolonial Criminology: “The Past Isn’t Over…”

Postcolonial criminology, as we refer to it, disputes the view that colonisation is a thing of the past. Rather, it is an ongoing process and lived experience that defies hollow state gestures towards reconciliation and “closure”. Reconciliation in its contemporary form lacks substance without restitution and Indigenous resurgence, including necessarily through reclaiming land (Alfred 2005, 181). Ultimately, decolonisation cannot take place as an “event” in which the government decries its past without examining its present practices. In the same way colonisation manifests in structures and processes, decolonisaton is a process of challenging hegemonic structures, including those within the economy and corporate sector, the government, the academy, think tanks, schools, the media, religious institutions, the monarch and the hegemonic cultural sphere. This challenge is through destructuring as well as enabling ground-up empowerment of First Nations. While it has remained self-servingly convenient for us to “move on” from what we like to call the past, that “other country”, Indigenous peoples cannot; they remain trapped in a constellation of settler colonial policies and practices designed to eradicate them. It is hard to “move on” when someone has you pinned to the floor. When Indigenous peoples © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_2

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witness and experience the various acts of violence, abuse and neglect perpetrated against them by white settlers and the settler state, they see a functioning, unbroken chain of repression and institutional racist violence. This chain remains largely unchanged since the dawn of colonisation and is not just a string of unrelated “incidents”.

Reading Criminology South of the Border Aside from the compelling ethical and moral claims on criminology and criminologists, the Indigenous world experience also provides a fascinating and under-utilised counterpoint for comparative research, as it throws into sharp relief the unambiguously Anglo-spheric epistemological and ontological basis of global criminology. Postcolonial critique essentially reverses the traditional process through which “reality” is rendered knowable by researchers, “invert[ing] the order of things” in Comaroff and Comaroff ’s expression (2012b, 114), by demystifying the impartiality, reliability and objectivity of the western researcher’s gaze, rather than that of the research subject. Epistemologies of the South encourage what Paul Ricœur (1970) described as the “hermeneutics of suspicion” when weighing up the relevance of mainstream theory to the position of the South. Indigenous epistemologies identify alternative ways of comparing justice and punishment between the colonised Global South and the colonising Global North, and make a contribution to the decolonisation of criminological theory, research and methods. Southern theories, from the Americas, Africa, Asia and the antipodes have similar interests in articulating a distinctive alternative to the narratives and discourses of the north. For centuries, epistemologies of the Global North have dominated, indeed constructed, the world—most recently through Globalisation. However, there are suggestions that this has begun to change. Comaroff and Comaroff (2012a) assert that Euro-north American modernity, now running out of steam, is “drifting southwards”, and it is the south that is now “tracking at the front end of history” (2012a, 44). While this may be an exaggeration, it is certainly the case that the Global North is less certain about its capacity to deliver on the promise of material and physical security. The North/South imaginary has been important in

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sustaining a number of binary oppositions, which have tended to work in favour of the Global North’s hegemony: purity versus impurity; developed versus backwardness; civilised versus savage; law-abiding versus deviant. These have material, indeed mortal, consequences in terms of justifying the endless wars and the “restructuring” of societies deemed a threat to western national security, particularly since the events of 9/11. The failure to acknowledge the pervasive influence of colonial power has inhibited the emergence of comparative research free of Eurocentric bias, and closed off potentially fruitful lines of inquiry: not just about the non-Anglo world but about the North itself as an increasingly fractious site of postcolonial contestation and conflict. Understanding relationships between North and South requires moving beyond a narrow focus on state apparatuses to access the capillaries and networks of power that sustain ethnic and racial inferiorisation, including what Derek Hook (2001, 2012) refers to as the “extra-discursive” moment. Picking up on the work of Franz Fanon, Hook affirms the importance of psychoanalytic and socio-political/economic spheres, arguing that Fanon’s work is at its most valuable in its [u]nderstanding of colonialism not merely as a means of annexing land and territory, but of appropriating culture and history themselves, that is, a way of usurping the means and resources of identity. The colonisation of a land, its people, its culture, is also, in short a ‘colonising of the mind’ in Ngugia aw Thiong’s famous phrase, which receives its echo in Mandela’s…characterisation of apartheid as ‘moral genocide’. (Hook 2012, 20)

Postcolonial criminology does not let “civil society”, or the agency of white settlers, off the hook. These extra-discursive processes fuse together the structures of reference and affect that allow colonial racism and oppression to be normalised. In a phrase commonly attributed to Albert Einstein, insane people continue to repeat disastrously failed strategies, in hope of a different outcome. Such insanity is a common condition for white, western-­ schooled criminologists, like us. We earnestly lug our kit bag of criminological constructs around Indigenous communities in the sincere hope that (with some minor adjustments to take into account local cultural variations), a range of perspectives born out of observations of European

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diaspora on the streets of urban, capitalist social formations in the Global North, would somehow provide a stable platform for observing the relationship between an Indigenous, colonised people and the colonial state in the Global South. After several years of beating our ontological heads against an unyielding epistemological wall, we sought help and turned to decolonising and postcolonial theories. This “awareness” was shaped by the cognitive dissonance we experienced as we taught one reality in the academy and experienced another in the field—including on Indigenous places (whether that be in the Top End of Australia, the Tanami Desert or the urban streets of Redfern in Sydney), in Aboriginal Night Patrol vehicles, at Indigenous organisations, or in prisons or coronial courts. Having made the turn, however, we recognised that these perspectives provide a means of looking at the Global North, not just the Global South; as neo-­ liberal globalism and a massive rise in ethno-politics in Europe and the USA are blurring the boundaries between the two worlds.

Postcolonial Turn and Coloniality We refer to the “postcolonial turn” not in terms of a world after colonialism has ended (it hasn’t), but in terms of the diversity of cultural, social and political contestation and crises brought into being by a multiplicity of colonial projects (Blagg 2016a, 231; Anthony and Blagg 2013). The “post” intimates the extent to which the great acts of colonial dispossession, from South America to the Pacific, irrevocably transformed the structure of the world (Bhambra 2007). The postcolonial bears a strong resemblance to the concept of the “coloniality of power” in Maldonado-­ Torres’ (2007, 243) work, which refers to long-standing patterns of power that emerged as a result of colonialism… that define culture, labour, intersubjective relations, and knowledge production well beyond the strict limits of colonial administrations. (2007, 243)

Grosfoguel also employs the notion of “coloniality” to describe the persistence of the North’s power over the South after formal colonisation in the following way:

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Coloniality allows us to understand the continuity of colonial forms of domination after the end of colonial administrations, produced by colonial cultures and structures in the modern/colonial capitalist/patriarchal world-­ system. (2011, 219)

Coloniality describes how discrimination originating under colonialism survives colonial administration and becomes integrated in succeeding social orders (Wallerstein 1995). Coloniality confirms the dominance of the western economic, political and cultural model, making it difficult for the oppressed to have confidence in their own concepts and beliefs, essentially infantilising them and restricting them to European forms of thought (Ndlovu-Gatsheni 2013). Postcolonial critique has been concerned with articulating and privileging the subjugated knowledge of colonised peoples and identifying the ways colonial structures of domination are negotiated and subverted by the colonised (Bhaba 1994; Chakrabarty 2002; Moore-Gilbert 1997). Postcolonial relations, therefore, inhabit the present and construct the future. They are not simply consignable to the past. Like Diana Brydon (2000), we do not view a postcolonial stance as just concerned with studying the past, rather it is committed to a decolonising agenda and finding better ways of living together. Redressing the imbalances in global knowledge production is to recognise the close links between epistemological justice and social justice. Comparative criminology often ignores the history of colonialised people, and so contributes to what de Sousa Santos (2007, 10–12) calls “cognitive injustice”. The problem here lies in the fixation with the nation state and the consequent invisibility of numerous ethno-political categories disputing its monopoly on sovereignty.

Settler Colonialism Settler colonialism differs from other brands of colonialism in that it embraces not simply the exploitation, but the wholesale appropriation of land, as though it were always/already the property of the European, awaiting “discovery”. According to Patrick Wolfe (2006, 387), this ontology of settlement is inherently eliminatory; though it is, he insists, not inevitably genocidal. Settlement requires the extinguishment of Indigenous rootedness

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in land, not always the extinguishment of the people themselves: genocide may be one among a range of strategies, including forced assimilation, dispossession, enforced mobility and concentration in places of confinement. Expressed simply, settler colonialism is a “form of colonialism in which ‘outsiders’ come to make a new home on the land that is already inhabited by other humans” (Tuck and Mckenzie 2015, 635). In this form of colonialism, it is the land itself that is at stake, not just its resources. In Said’s (1993) formulation, outsiders usurp the land, and resources are the sweet icing on an extremely desirable cake. The inevitability of violence of various kinds characterises settler colonisation globally. As Dunbar-Ortiz (2014, 9) notes in relation to the United States of America: Settler colonialism, as an institution or system, requires violence or the threat of violence to attain its goals. People do not hand over their land, resources, children, and futures without a fight, and that fight is met with violence. In employing the force necessary to accomplish its expansionist goals, a colonizing regime institutionalizes violence.

Settler colonialism creates “masses” that are non-Indigenous settler Diaspora and the children of Diaspora. The non-Indigenous (predominantly European) Diaspora often view themselves as subordinate and not the colonists. Yet the Diaspora remains bound by dominant laws and cultures that are embedded in particular structures of sentiment and feeling, derived principally from Europe. The Diaspora, including its intellectuals, become complicit in settler colonial hegemony-making and its attendant violence. Even in struggle, they can buttress colonial discourses and practices. Struggles around “social justice” for the “masses” can obscure specifically Indigenous demands for decolonisation and sovereignty, where advocates prioritise generic human rights reforms that privilege the western, individual subject. The specific form of Indigenous dispossession is often elided in the works of researchers in the critical humanist tradition. The social justice model also has a tendency to fragment Indigenous resistance and deflect decolonising impulses, including by relying on a “white saviour” model. This occurs at the expense of collective Indigenous struggles to regain sovereignty. In light of all this, what might a postcolonial criminology committed to Indigenous aims look like?

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Qualitative or Quantitative Research We approach the deployment of criminological “methods” tentatively— not as though they are capable, with the necessary refinements and triangulations, of mastering some fundamental objective “truth”, but rather as unreliable guides, profoundly compromised by their origins within colonial discourse. Traditional debates about the merits of qualitative versus quantitative methods, particularly in the pursuit of criminological truth claims, therefore seemed to us to have only limited relevance. It is what these methods have in common, rather than what separates them, that remains of interest (and of concern) from a postcolonial perspective; since both construct reality from the same position of ontological privilege, reflecting the implicit authority of the Western gaze. The familiar research tools of Western social science methods need to be deployed critically and reflexively. We must interpret what we read, see and hear, not as representing pieces in a jigsaw puzzle, but, so to speak (and our apologies for mincing metaphors here), as a series of round pegs and square holes that would always create friction and resist easy synthesis (Hook 2012). In terms of criminological methodologies, therefore, we think it is vital to adopt a mix of techniques, rather than privileging one approach, and run together insights from a diversity of disciplines. In doing so, our incorporation of Indigenous perspectives and knowledges does not lie at the margins but is positioned at the centre of these methods. What should remain the constant centre of research with Indigenous peoples is the relationships with Indigenous peoples, and their ownership of the process rather than subservience to a particular method.

A Useful Comparative Criminology Comparative criminology should not just compare across space but through time. Continuities in colonial relations explicate contemporary forms of Indigenous oppression, and junctures in the relationship throws into sharp relief Indigenous refusal, resistance and resurgence. We employ Edward Said’s (1993) notion of contrapuntality to demonstrate how discourses re-emerge across time and place. This notion of contra-

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puntality identifies the role of “imperialism and that of resistance to it” (Said 1993, 79) in the narratives of colonisation, reading texts to “include what was once forcibly excluded”. Contrapuntal analysis is a useful tool for creating a medium for Indigenous voices to be heard, while also interrogating the histories and assumptions that underpin criminology. It stresses pervasive continuities between technologies of control over time for Indigenous and other colonised peoples: the past remaining stubbornly embrocated in the present. Contrapuntal readings disrupt the linear flow of Western “history” by recuperating the lost and subordinated time of the Other, and bringing to consciousness their histories of struggle, resistance and refusal. Our approach, therefore, does not follow a “rupture or radical break” model of decolonisation in terms of “all or nothing”: with Indigenous Laws somehow replacing settler law. This notion is, paradoxically, embedded in the binary logic of colonialism itself, which views sovereignty as absolute and indivisible (Chowdhury 2007; Bush 2018). Instead, we pose a pluralist alternative where settler law increasingly secedes sovereign power to Indigenous Law and culture, allowing what Fitzgerald (2001, 113) calls a “vibrant and decentred” justice system to flourish, which respects Indigenous forms of law and culture.

International Relations? Indigenous peoples find it particularly difficult to find a float in the global carnival of comparative research because of the latter’s fixation on the nation state as its primary unit of analysis. Because Indigenous people do not form recognisable nation states and are largely subsumed within the settler state’s systems of national representation, they are neglected by criminology’s focus on “national” trends. Indigenous research and praxis, nonetheless, paves a way for navigating out of the ubiquitous Western research practices. The validity and legitimacy of the colonial state is encapsulated in international law and International Relations (IR) theory. It neglects those forms of politics and social struggle not aimed at replacing one form of the nation state with another but a total decolonisation of political,

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economic, social, cultural, and psychological planes (Ramnath 2011). It disregards movements concerned with re-conceptualising the substance of nationhood, citizenship and statehood, to accommodate radically alternative forms of being in the world for those who “move around” (Scott 1998) (e.g. Roma, Gypsies and Travellers) and those embedded in place (Indigenous peoples). International Relations theory perpetuates the nation state as the point of departure for inquiry. The solutions to social issues are inevitably viewed through the lens of the nation state, which becomes reified, according to Grosfoguel (1996, 2011) “as the privileged location of social change”. By contrast, “struggles above and below the nation-state are not considered in nationalist political strategies” (Grosfoguel 2011, 26). This latter point has particular resonance for Indigenous peoples engaged in a diversity of struggles for recognition, which frequently take place outside (above/below and beyond) mainstream national politics, as we discuss later. A number of dissident voices in the sphere of International Relations (IR) scholarship, united under the banner of Third World Approaches to International Law (“TWAIL”; see Anghie 2007), argue that international law is animated by the “civilising mission”—the project of governing non-European peoples (also see Agnew 1994, 2009; Marshall Beier 2002; Krishna 2001; Chowdhury 2007). They maintain that IR sustains and upholds elitist views of the world. These views take as given and unproblematic the boundaries, fixedness, naturalness, and permanence of modern nations states. Krishna (2001, 407) points to, “the putative anarchy of the system of nation states, that discredits possibilities of imagining non-national ways of being”.

Partitions and Packages Furthermore, postcolonial theories have recognised that the “partitioning of disciplines, the traditional structuring of academic domains” (Hook 2012, 21) into discretely packaged entities, each with its own “epistemological territory of expertise”, “ensures that the more pernicious elements of colonial racism … evade analytical capture”. The full extent of the catastrophe is never pieced together, instead we measure and analyse

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discrete and de-contextualised elements. This leads to an erasure of the systemic qualities of colonisation; colonisation as a long-term, multifaceted project of extinguishment and replacement. For instance, Dudgeon and Walker (2015) note the tendency of Psychology to individualise problems and negate Indigenous Knowledges. The effect is to objectify, marginalise and racialise Indigenous people rather than identify the patterns of oppression (2015, 276). While we keep imagining the “problem” in terms of those isolated indicators (education, literacy, justice, health) so beloved by those intent on “closing the gap”, we fail, as Hook suggests, to visualise the full picture and look towards alternative, paradigmatic solutions. Psychological, sociological, legal and anthropological literatures and methods perform a valuable function—from the coloniser’s perspective— of presenting issues as discrete “problems”, each with its own disconnected package of “solutions” that do not challenge the legitimacy of colonial rule. Postcolonial theories set out to re-weave the fractured realities of the colonised subject into the broad fabric of dispossession and racial inferiorisation (Hook 2012, 22; see also Bhaba 1994; Fanon 1986). As we set out in this book’s Introduction, eschewing a disciplinary focus means not only turning to inter-disciplinary knowledges but ­post-­disciplinary knowledges that focus on Indigenous Knowledges (see below) outside of the Western canon.

Holding on to Place Recognising and centring Indigenous place as the bedrock of Indigenous politics may be the key that unlocks the chains binding criminology to the Anglosphere. A postcolonial criminology would set out to understand how excluded or subjugated groups establish their own priorities, and shape practices based on their distinct historical experiences. In relation to Indigenous peoples this would mean coming to terms with the importance of place. As Tuck and McKenzie write: A task of critical place inquiry is to organize itself around commitments to Indigenous social and political theory—including Indigenous sovereignty, refusal, and the non-abstraction of land—not as peripheral points or extra considerations, but as foundational to its praxis. (2015, 636, emphasis added)

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Postcolonial theory stresses the extent to which colonisation takes place in the realms of culture, knowledge and imagination. Spivak (1988, 82) speaks, for example, of the “epistemic violence” of colonisation—and colonisation as a process of “worlding” where the colonised space is inscribed by the worldview of the coloniser. If nations truly are “imagined communities” (Anderson 1983), then decolonisation involves a re-­ imagining and remapping of place, time and space: particularly of place, as we discuss later. Indigenous peoples need to be viewed as more than just the unfortunate detritus of white nation building, but as a vibrant and essential feature of a postcolonised world. A key concern of this book is decolonising relationships between mainstream criminology and what anthropologists call the “Aboriginal domain”, defined by John von Sturmer as “places where the dominant social life or culture is Aboriginal, where the system of knowledge is Aboriginal, where the major language is Aboriginal; in short where the resident Aboriginal population constitutes the public” (von Sturmer 1984, 219; also see Peterson 2000). Aboriginal domains are a global ­phenomenon, hidden from analytical identification by our fixation with the categories and concepts of the Anglosphere: the nation state; class conflict; gender differences, and so on. Aboriginal domains survived the incursions of colonisation and represent a bulwark against the totalising efforts of settler colonial state. “Domain” is not static and unchanging. Its shape, density and texture is in constant flux and in a dynamic relationship with the mainstream society. Furthermore, domain can be found in urban, rural and remote places (Blagg 2016b). In Australia, the High Court ruling in Mabo v State of Queensland (No. 2) ((1992) 175 CLR 1) consigned the legal fiction of terra nullius to the garbage bin of history. Elements of Aboriginal domain are increasingly resting on Native Title, and with it a greater say in what occurs “on-­ country”: but, alas, not yet the power to veto unwelcome extraction projects, or full powers to leverage off title to develop Indigenous enterprises. Nonetheless, the very fact that an admittedly restricted, and heavily contested, form of Aboriginal title to land is now doctrine in Australia raises the possibility that forms of Indigenous “place-based sovereignty” (Blagg and Anthony 2014) will emerge with growing strength, in some places at least. In relation to justice, it may strengthen Aboriginal demands to have a leading role in the creation of local justice strategies (through strong

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men and women’s groups) and be directly engaged in developing their own forms of policing (based on the Night Patrol model). This includes developing their own diversionary practices (based “on-country”), initiating place-based carceral abolition, and strengthening the role and status of Aboriginal Elders in law-making and adjudication.

Challenging the Accredited Version The overwhelming majority of criminologists working in Australia, either in the academy or in policy and practice, share a genuine concern, even a sense of outrage, at the massive over-incarceration of Indigenous Australians, and the high rates of Indigenous victimisation. Most criminologists would agree on the need for more resources to deal with the “underlying causes”, such as better diversionary strategies, early intervention, community policing, alcohol reduction strategies, and so on. An, admittedly smaller, number, however, are also concerned that the mentalities of the discipline itself may be complicit in some way in legitimising the status quo; not out of overt racism, but through adherence to perspectives and methods that misrepresent the causes of Indigenous over-representation and thereby lead to counter-productive policies and practices. Linda Tuhiwai Smith (1999, 6) informs us that “research” is “inextricably linked to European imperialism and colonialism” and the word itself “is probably one of the dirtiest words in the indigenous world’s vocabulary”. Strategies and solutions lifted from the growing international smorgasbord of “world best practice”, or, “whatever-is-trending-in-the-USA works” literature, and imposed from above onto the Indigenous domain, may unwittingly perpetuate rather than reduce the problem. But the tendency to import and impose ideas that “worked” in Duluth (USA) or Peterborough (UK) (assuming they did) onto Indigenous place is nurtured by a colonial mind-set, unable to rid itself of the belief that only Euro-north American knowledge is “real” knowledge, and anything else is mere anecdote. This involves a process of homogenising and standardising the world, so that—within the colonial imaginary—research on truancy and crime among second generation Vietnamese in Milwaukee is seamlessly transportable to Indigenous non-participation in schools in

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Tenant Creek (Northern Territory, Australia), and interventions with middle-class white men in Duluth will provide a suitable model (with a few cultural embellishments) for interventions for Aboriginal men in Kununurra (Western Australia). This critique of Western criminology is levelled at its claims to universality and its neglect of alternative epistemologies and ontologies. The task of postcolonial criminology, alternatively, is to remain open to the prospect that “another knowledge is possible” (de Sousa Santos 2008). This can then inform the re-articulation of the terms in which the colonising state interacts with the colonised (Spivak 1996; Said 1978, 1993; Young J 2011; Ashcroft et al. 1998). It also demonstrates the capacity of Indigenous strategies, including in resistance to state crime control, violence and exclusion, and Indigenous self-determination.

Fashionable Adornments While we may gesture approvingly in the direction of Aboriginal “culture” as a fashionable adornment that gives street cred to our work (e.g. by organising a few “consultations” with Aboriginal people); the “real” work takes place somewhere else (usually on our computer screens). Furthermore, research that does not fit in with accredited modes of knowing and seeing the world—which, in the Australian context, means restricting our approach to variations of what Jock Young (1986) called “administrative criminology” and varieties of routine activities and rational choice theories—is marginalised. Antje Deckert (2014) confirmed what many working in the antipodean criminology space suspected: publications on the topic of Indigenous over-representation in top ranked Australian journals is low in proportion to the scale of the problem and the coverage given to other marginal communities with fewer problems presented by the criminal justice system. Deckert concludes that the dearth of publications in this crucial area contributes to the marginalisation and silencing of Indigenous voices. Similarly, the flagship Australian and New Zealand Society of Criminology (ANZSOC) conference largely recycles the same global “keynote” speakers one would see on the British, European and American circuits, or their Australian metropolitan equivalents.

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North American speakers in particular may “do” the ANZSOC conference as part of an international “Hello Wherever” tour, where they offer the same paper on some universalist theme of situational and social crime prevention, crime and gender, cultural criminology, international human rights, the punitive turn, border criminologies, and so on. These speakers, brilliant though they may be, usually have nothing positive to contribute to our understanding of the most pressing issue facing the criminal justice system in settler colonial societies such as Australia: their tortured relationship with the Indigenous Other. Further, the fixation with quantitative research can also work to the detriment of Indigenous people. It tends to militate against forms of theoretical research that interrogate the big picture, integrate and/or challenge disciplinary boundaries, create spaces for Indigenous Knowledges and methodologies, and visualise new directions.

Imaginative Geography What we (non-Indigenous people) see when we imagine Indigenous communities might usefully be described, after postcolonial theorist Edward Said in his classic study Orientalism (1978), as an “imaginative geography”. That being, a construction often based largely on myth and rumour about the Other, but nonetheless powerfully instrumental in creating regimes of truth that then guide policy and practice. Imaginaries of the Other have real outcomes and consequences (Blunt and McEwan 2003). Further, these imaginaries also play their part in reflexively defining Europe and European(ness)—if “they” are incorrigible drunks, “we” are civilised and sober. The latter became the reference point for the normal and civilised, shaping what Fanon (1991, 41, 83) called the Manichean (good/evil) division between coloniser and colonised. “Whiteness” takes on a transcendental, even beatific, lustre, as the embodiment of purity and virtue, “blackness” its malevolent opposite. Geographies of difference and distance fold together to nurture and sustain a particular range of stereotypes in settler colonial Australia, through the demarcation between mainstream Australia and the semi-­mythical space of the “outback” or “bush”—the space of the Other that has only been tentatively

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assimilated into the “imagined community” of the nation state. The mainstream white story narrates that the problems of Aboriginal communities globally are a function of their lack of integration into white society. In the case of the 2007 Northern Territory “Intervention” (a discriminatory and violent intervention by the Australian Federal Government into Aboriginal communities in the Northern Territory, discussed in Chaps. 9 and 11), for example, the, then, Federal Government was able to successfully embroider an imaginary of the Indigenous “outback” as a “war zone” of “failed states” where “petrol barons” sold children for sex and Indigenous men set fire to their wives on a regular basis. This imaginary legitimated a neo-colonial take-­ over of Indigenous lands (Altman and Hinkson 2007; Anthony and Blagg 2013). It was a turn made possible, and palatable, because settler colonial Australians share in a number of almost unconscious beliefs, which insinuate themselves into so-called debates about the Indigenous domain. One of which is that Indigenous communities are hopelessly dysfunctional and incapable of self-determination. This belief was given prominence and legitimacy in the white mainstream, despite an official inquiry that painted an entirely different picture and called for more, not less, Indigenous empowerment (Wild and Anderson 2007).

Winds of Change There are winds of change blowing through the academy. Many of criminology’s feeder disciplines are now attempting to decolonise theory and practice, and acknowledge their complicity in sustaining white colonial privilege. From a position of unquestioned hegemony, the Euro-north American canon is now being challenged by forms of counter-knowledge that question the Global North’s monopoly on knowledge. Postcolonial scholarship, Critical Race Theories, Settler Colonial Theories, Indigenous and Whiteness Studies, and Queer and Trans theory are having an impact on the ways researchers view their position; focusing particularly on the ways hetero-normative white privilege insidiously shapes law and policy, as well as research priorities and methods, and engenders systemic forms of racism. Euro-modernity can no longer claim to hold the copyright on how to live in an increasingly multi-vocal and multi-polar world.

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Decolonising criminology begins with acknowledging the colonial roots of a discipline that is historically concerned largely with making the Other the same, of folding the margins into the mainstream through various techniques of discipline and punishment, treatment and confinement, measurement and classification (Agozino 2003). Criminology is not a “neutral” science: it is, from an Indigenous perspective, unambiguously aligned with white power and privilege, giving “scientific” gloss to a justice and correctional system that has stripped Indigenous people of their land and made them refugees in their own Country. There are also pressures from outside of the academy for change. The biennial Sisters Inside conference, held in Brisbane, Australia, leads the charge on centring the voices of Aboriginal women and those with lived experience in prison. Its calls for prison abolitionism, under the theme “imagining a world without prisons”. In doing so, it challenges the taken-­ for-­granted assumption that prisons and the criminal justice system are an indelible aspect of contemporary society. The academy lags in such calls, but it cannot ignore the impact of this conference, which has provided avenues for Aboriginal and Torres Strait women to be supported and to challenge criminal justice interventions (including bail denials, strip searches, fines and custodial sentences) and, importantly, has shifted the discourse to implicate the state. The rephrasing of strip searching in prison as “sexual assault by the state” is one powerful shift that has informed solidarity campaigns against strip searches internationally (Sisters Inside 2004).

Not a Metaphor The need to “decolonise” institutional knowledge has become an increasingly vocal demand globally. However, there are dangers that, like many meta-narratives, the decolonising construct can be misappropriated and co-opted. Tuck and Yang (2012) maintain that the term is not an endlessly plastic “metaphor”: When we write about decolonization, we are not offering it as a metaphor; it is not an approximation of other experiences of oppression. Decolonization

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is not a swappable term for other things we want to do to improve our societies and schools. Decolonization doesn’t have a synonym. (2012, 3)

They maintain that when “metaphor” infiltrates decolonisation it “recenters whiteness, it resettles theory, it extends innocence to the settler” (2012, 3). This is similar to the “All Lives Matter” response to “Black Lives Matter” developed in response to police killings of African American people in the United States of America, which conceals inequalities in power and the degree of Black suffering at the hands of an occupying and structurally racist police force. Settler colonisation, Patrick Wolfe (2006) reminds us, differed from other forms of colonisation in that it required the elimination, rather than the simple exploitation, of the native. “Natives” had the land; settlers wanted it, simple as that. All Aboriginal people needed to do to be a “problem” for settlers was to stay at home, as Bird Rose (1991, 46) points out. Criminalisation was necessary to legitimise an otherwise absurd, but necessary, fiction that the Indigenous people were trespassers on their own land. Genocide was one option, but more frequently elimination meant severing the link between Indigenous peoples and the land the settler desired, by transporting them elsewhere. This required, “particularized modes of control—prisons, ghettos, minoritizing, schooling, policing—to ensure the ascendancy of a nation and its white elite” (Tuck and Yang 2012, 4–5). The criminal justice system at all levels was instrumental in inscribing white rule and apartheid, and legitimating white sovereign power. It is only in recent years that settlers have begun to recognise that Aboriginal peoples possessed, and still practice, a distinct form of law, or laws, that have not been eradicated through white occupation. Criminology, however, tends to work from the premise that there is only one system of laws, discipline and penalty at work on the continent (Law Reform Commission of Western Australia 2006; Blagg 2016b). Chris Cunneen suggests that the “historical and structural conditions of colonisation” continue to shape relationships between criminal justice systems and Aboriginal Australians (2006, 334); while Mãori academic Linda Tuhiwai Smith (1999, 1) argues that, white research “is inextricably linked to European imperialism and colonialism” and must therefore be decolonised. She goes on to say that

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[i]t galls us that Western researchers and intellectuals can assume to know all that it is possible to know of us, on the basis of their brief encounters with some of us. It appals us that the West can desire, extract and claim ownership of our ways of knowing, our imagery, the things we create and produce, then simultaneously reject the people who created and developed those ideas and seek to deny them further opportunities to be creators of their own culture and own nations. (Smith 1999, 1)

 isplacing Universality: Indigenous D Knowledges We have been critical of the tendency for Euro-north American criminology to claim epistemic universality and neglect alternative epistemologies and ontologies. The task, therefore, for criminology involves opening up to other knowledges and other worldviews. In the case of settler colonies this starts with Indigenous Knowledges, which are rooted in Indigenous peoples’ identities as First Peoples, with a unique system of laws and cultures. This does not mean appropriating Indigenous Knowledges as fodder for research, but rather recognising its co-existing function in the protection, teaching and progress of humanity. Indigenous Knowledges resist a simple description; they are not free floating or universalising like Western knowledge, but situated in place. Marie Battiste, a Míkmaw educator, and Sákéj Youngblood Henderson, of the Bear Clan of the Chickasaw Nation and Cheyenne Tribe in Oklahoma, regard Indigenous Knowledge as the accumulation of knowledge of the earth’s people that represent over 5000 languages and cultures in America, Africa, Asia, and Oceania (Battiste and Henderson 2009, 5). They describe it as part of the collective genius of humanity of Indigenous peoples that exists in the context of their learning and knowing from the places where they have lived, hunted, explored, migrated, farmed, raised families, built communities, and survived for centuries despite sustained attacks on the peoples, their languages, and cultures. (Battiste and Henderson 2009, 5)

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For Battiste and Henderson, Indigenous Knowledge is passed on through learning and is conducted in experiences, relationships and responsibilities, especially to place: The primary source of IK [‘Indigenous Knowledge’] is in Indigenous languages and teachings that make every child unique in his or her learning capacities, learning styles, and knowledge bases. In IK, learning is viewed as a sacred and holistic, as well as experiential, purposeful, relational, and a lifelong responsibility. (Battiste and Henderson 2009, 5)

Lawyer and writer Terri Janke, of the Meriam people of the Torres Strait and Wuthathi people of Queensland, maintains that, “Indigenous Knowledge is collectively owned, socially based and evolving continuously” (Janke and Company 2012, 6). In Our Culture: Our Future, Janke states that the “Indigenous Cultural and Intellectual Property Right” refers to Indigenous Australians’ rights to their heritage, and that heritage consists of: The intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous people and passed on by them as part of expressing their cultural identity. (Janke 1998, XVII)

Western knowledge has, at large and since colonisation, been antagonistic towards Indigenous Knowledge systems. Criminology is not alone in this stance and its requiring of a decolonising process. A number of disciplines, from sociology through to psychology and social work, are acknowledging the degree to which their disciplines are historically embedded within discourses of European coloniality and modernity. They remain Western projects. Decolonisation is a long-term project that seeks to identify and transform the logic of coloniality underpinning Western theories to facilitate epistemic plurality (Mignolo 2011). Gray et al. (2013, 7) refer to the decolonising process in social work as providing a counterweight to Western “ways of thinking and behaving” by recognising and crediting “the strengths and contributions of Indigenous knowledges, traditions and practices, and supports Indigenous Peoples’ cultural survival and Indigenous rights”.

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A critical gesture towards decolonising Criminology—which is by no means restricted to Criminology—is to acknowledge Indigenous peoples as sovereign holders of Indigenous Knowledges. A means of achieving this is by acknowledging the importance of place in the lives of Indigenous people. Place, or Country, sits at the centre of Indigenous cosmologies: when people speak about place, from within place, they are speaking from the centre of an Indigenous worldview that stretches back and forward in time, not as the western, deracinated individual with his/her quixotic and idiosyncratic “opinions”. A criminological shift must account for and genuflect to Indigenous Knowledge and Indigenous sovereignty on place.

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Ndlovu-Gatsheni S J (2013) “The Entrapment of Africa Within the Global Colonial Matrices of Power: Eurocentrism, Coloniality, and Deimperialization in the Twenty-First Century”. Journal of Developing Societies 29(4): 331–353. Peterson N (2000) “The Expanding Aboriginal Domain: Mobility and the Initiation Journey”. Oceania 70(3): 205–218. Ramnath M (2011) Decolonizing Anarchism: An Antiauthoritarian History of India’s Liberation Struggle. Chico: AK Press. Ricœur P (1970) Freud and Philosophy: An Essay on Interpretation. New Haven, CT: Yale University Press. Said E (1978) Orientalism. New York: Pantheon. ——— (1993) Culture and Imperialism. London: Vintage. Scott J (1998) “The State and People Who Move Around: How the Valleys Make the Hills in Southeast Asia (ILAS)”. http://www.iias.nl/iiasn/19/general/1.html Sisters Inside (2004). Submission of Sisters Inside to the Anti-Discrimination Commissioner for the Inquiry into the Discrimination on the Basis of Sex, Race and Disability Experienced by Women Prisoners in Queensland. Smith L T (1999) Decolonizing Methodologies: Research and Indigenous Peoples. London: Zed Books. Spivak G C (1988) “Can the Subaltern Speak?” In P Williams and L Chrisman (eds) Colonial Discourse and Post-Colonial Theory: A Reader. New  York: Columbia University Press, 66–111. ——— (1996) The Spivak Reader: Selected Works of Gayatri Chakravorty Spivak. D. Landry and G. Maclaen (eds). London: Routledge. Terri Janke and Company (2012) “New Tracks: Indigenous Knowledge and Cultural Expression and the Ausralian Intellectual Property System”. Issues Paper, Response to—Finding the Way: A Conversation with Aboriginal and Torres Strait Islander Peoples, Conducted by IP Australia and Office for the Arts, 31 May. https://apo.org.au/sites/default/files/resource-files/2012/05/aponid38273-1150266.pdf Tuck E and McKenzie M (2015) “Relational Validity and the ‘Where’ of Inquiry: Place and Land in Qualitative Research”. Qualitative Inquiry 21(7): 633–638. Tuck E and Yang K W (2012) “Decolonization is Not a Metaphor”. Indigeneity, Education & Society 1(1): 1–40. Von Sturmer J (1984) “The Different Domains”. In Aborigines and Uranium. Consolidated Report on the Social Impact of Uranium Mining on the Aborigines of the Northern Territory. Canberra: Australian Institute of Aboriginal Studies. Wallerstein I (1995) Historical Capitalism, with Capitalist Civilization. New York: New York Press.

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Wild R and Anderson P (2007) Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’: Final Report of the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse. Darwin: Northern Territory Government. Wolfe P (2006) “Settler Colonialism and the Elimination of the Native”. Journal of Genocide Research 8(4): 387–409. Young J (1986) “The Failure of Criminology: The Need for Radical Realism”. In R Matthews and J Young (eds) Confronting Crime. London: Sage, 4–30. ——— (2011) The Criminological Imagination. Cambridge: Polity Press.

Legal Materials Mabo v State of Queensland (No. 2) (1992) 175 CLR 1.

3 “Who Speaks for Place?”

Disconcertingly, at a time when the world’s Indigenous peoples struggle to reclaim stolen land, besieged by the exterminating angels of neo-­ liberalism and globalisation, some influential social theorists of the Global North have proclaimed the death of all that is solid, and stress the degree to which place has ceased to be the basis for belonging in a world of transience, fluidity and mobility. In opposition to this trend, Antonio Escobar (2001) poses the question: “Who speaks for place?”. Decolonising criminology must begin with an understanding of Indigenous place and, following Escobar, reinstate the materiality of place as a significant location for identity, social meaning and political struggle for the colonised. Postcolonial critique re-centres landscape and place, tropes increasingly marginal to contemporary social theory. Such theory preferences abstract, mobile, dynamic and globalising structures and institutions of modernity—the “space and flows” of migrancy, finance and consumerism. Postcolonial criminology focuses on Indigenous place, and the conditions under which the settler state either denies or enforces mobility. Colonial power manipulates the landscape in relation to its use value, tending to ignore its meaning as Indigenous place. As Christopher Preston (2003, 74) writes: © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_3

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Space is something abstract and undifferentiated that is simply moved through or mapped from the outside. Places are the result of people pausing for a while in a location and instilling some of their cultural values into the landscape.

Has the focus on diaspora, space and flow meant that we find it more and more difficult to feel empathy with those who struggle to defend place? Or to recognise the nature of this struggle? Has attention to globalisation and the spread of market capitalism obfuscated our understanding of the local in favour of the universal? Or does it implore us to take a lens to globalisation as yet another chapter in the ongoing process of imperialism, capitalist primitive accumulation and dispossession that is met with continued refusal, resistance and rejection on the part of local Indigenous peoples? Indigenous refusal, resistance and resurgence—what we call the Three Rs—are far from a minor footnote to the story of imperialist conquest, but have sustained Indigenous survival as a counterpoint to the colonising project. Much of the advocacy for this has come from Indigenous activists, community builders, political leaders and human rights lawyers. They have engaged in struggles for structural change and traversed issues such as intellectual and cultural property rights, resource management, legal pluralism, sovereignty and self-determination (e.g. Alfred 2005; Behrendt 2003). Indigenous acts of refusal, resistance and resurgence have re-energised and redefined a diversity of political struggles in many corners of the globe. This includes resistance to neo-liberalism, racial exclusion and the capitalist exploitation of land and labour. Canadian Yellowknives Dene scholar Glen Coulthard considers the “anticolonial Indigenous struggle” to be making headway in recent years—particularly with the Idle No More (2019) campaign in the Americas that “calls on all people to join in a peaceful revolution to honour Indigenous sovereignty … protect the land and water and build resurgence of Indigenous nationhood”. Coulthard refers to alliances being strengthened with socialists because of a shared critique of economic strategies “based on devouring everything under our feet” (quoted in interview with Epstein 2015). In this alliance, Indigenous peoples positioned “as important revolutionary actors” who orient class struggle to “the anticolonial efforts of indigenous peoples” (quoted in Epstein 2015).

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Unremitting refusal, resistance and resurgence is part of the decolonising process that undoes the “violent process of state formation”, according to Chomsky (in Meyer and Maldonado Alvarado 2010, 12). The Three Rs push back on the destructive forces of primitive accumulation—the continued  dispossessing of Indigenous people of their land in pursuit of a capitalist mode of production (Coulthard 2014a; Grewcock 2018). Refusal, resistance and resurgence persist notwithstanding and in spite of “homogenising pressures” from the centre (2010, 13). Their forms vary according to the nature of the community and external pressures. They can be overt or subtle, including protests over pipelines, the revival of languages, self-management and protection of lands and ecologies on a local level, and the passage of the United Nations Declaration on the Rights of Indigenous Peoples on the global stage (2010, 19). For Chomsky (2010, 19), all of these run counter to the effort to homogenise, dominate and subordinate: “they all provide grounds for hope”.

Obscuring Place: Bauman and Liquidity Zygmunt Bauman’s work has been influential in shaping our understanding of late-modernity, or what he prefers to call “liquid” modernity due to its increasing tendency towards individualism, transnationalism, privatisation and fluidity—a domain of shifting allegiances and identities, rootless nomadism and fractured identities (see e.g. Bauman 2001). Bauman’s thinking in relation to the liquidity of modern societies has provided a focal point of reference for contemporary cultural criminology focused on social exclusion and inclusion (see Bauman 1997). It informs the new sociological focus on movements and flows across space, through migration, diaspora and transnationalism, as illustrated in the “new mobilities” paradigm mapped out by Sheller and Urry (2006) and colleagues (discussed later). A comparative criminology reliant on Bauman’s work risks erasing the acts of resistance and place-based practices of many colonised peoples, and thus inhibiting the inquiry into decolonising strategies. Postcolonial criminology is antithetical to Bauman’s liquidity thesis because, like much social theory of the Anglo-sphere, it universalises the experience of the Global North to the Global South. Bauman’s schema

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divides the world between the individualised, deracinated consumer of the West and the “wasted” rest, condemned to static immobility. Adopting Bauman’s liquidity thesis risks diminishing Indigenous lives as “wasted lives” on the social periphery (Bauman 2004) and obfuscating sentiments of place-based lives and communities (Anthony 2018). This emphasis on mobility should not be allowed to gloss over the continuing importance of struggles and contestations around belonging to place in the Global South. Bauman’s assertion that the ones who “cannot at will leave their place” are the “ruled”, while those able to “be elsewhere” are the rulers (Bauman 2001, 120), neglects the extent to which the reoccupation and defence of traditional place by Indigenous peoples is generating new narratives of emancipation in many parts of the Global South, and that this is occurring because of, not in spite of, embeddedness in, and occupation of, place. Even Manuel Castells (2010), whose formulation of “networked societies” charted the emergence and domination of the “space of flows” (2010, xxxii), which had enormous influence on the mobilities and globalisation literature, expresses concern that the focus on movement should not eclipse the importance of place, particularly in the context of nurturing social solidarity: [D]ominant activities in our society are organized around the logic of the space of flows, while most, and the most powerful forms of autonomous construction of meaning, and social and political resistance to the powers that be are being constructed, currently, are around places. (Castells 1999, 297 emphasis added)

Tuck and McKenzie (2015, 633) also observe that “the spatial turn” in social science has involved a “turning away” from place: In contrast, Indigenous intellectual contributions rarely fail to engage in issues of land and place—especially via conceptualizations of tribal identity, sovereignty, and treaty rights—yet when these discussions are taken up by non-Indigenous and settler scholars, the salience of land/place is frequently left out of the picture. (Tuck and McKenzie 2015, 633)

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What Escobar (2001, 139) refers to as the “erasure of place” in the spatial turn has serious implications for Indigenous research. Patrick Wolfe (2006) notes that settler colonialism is, above all else, a geo-­ territorial project, underpinned by the colonisation and transformation of place. Settler colonisation, unlike other forms of colonisation, is not satisfied with just occupying and sitting on Indigenous territory in order to extract its resources. It transforms place into something else through the eradication of Indigenous populations and the implantation of the Global North. Bauman’s statement above on those who are “ruled” needs a counterpoint: “those who cannot at will remain in place” are ruled by a colonial power that forces mobility on them. Unless we locate place, criminologists lose sight of colonial encounters and decolonising resistance. A focus on place enables us to explore the hyperincarceration of Indigenous people as part of a process of dispossessing Indigenous people of land, involving the enforced mobility of Indigenous people off Country, and identify the lineage of colonial carceralism from welfare and administrative resettlements to prisons (see Chap. 5).

White Diaspora’s Spatial Imaginary Place remains the site and the stake of conflict between Indigenous peoples and settlers, the settler state and ruling class in colonial societies. Classifying Indigenous people as “nomads” was a settler device to dismiss Indigenous claims to the continuing possession of land. It served white occupying mentalités on the ground and in the legal realm. Indeed, the “doctrine” of terra nullius rested on the fallacy that Indigenous people were nomads without a settled legal order (Falk and Martin 2007). It assumes and asserts the absence of pre-colonial claims to place. More subtly, studies of movement and flows reinforce the notion of a placeless humanity. Bauman’s (2001) suggestion that “we” are all part of one Diaspora or other, then, becomes particularly contentious, given that Indigenous ­politics is shaped by conflict with the Diaspora and its occupation of Indigenous land. Indigenous people by definition are not a Diaspora, and remain or are embedded ontologically in place. The elevation of individuality and uprootedness to the status of a “universal condition” stymies

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intellectual exploration of the ontologies and epistemologies of the non-­ Western world. Diasporas are globally dispersed groups whose collective experiences, structures of sentiment and feeling, attachments and values are scattered across space and time, with an ambivalent relationship to the land (see Cohen 2008).

“Cunning Recognition” It follows from our discussion that culture for the Diaspora is portable, as Bauman (1991) observes: it can be packed up and transported. It can be expressed in faraway lands where even diasporic cultural minorities celebrate on the national days of their place of origin and flaunt their foods, dance and exotic wares (Marchetta 1992), assuming they can withstand assimilationist pressure and mounting racial violence from the Anglo-­ sphere. However, cultures that threaten the spatial ordering of the colonial project or cultural minorities that no longer have a role in the marketplace, as Bauman argues, are increasingly under siege. Elizabeth Povinelli (2002) identifies that the liberal multicultural state’s “cunning of recognition” lies in the extent to which it accepts and values cultural difference only to the degree that such differences do not constitute a “radical alterity” (2002, 5). The liberal multicultural imaginary operates to channel cultural difference along certain hegemonically sanctioned pathways. Indigenous “culture” (paintings, music, dance) is celebrated but its connection to the occupation and possession of land—therefore its expressions of sovereign power—remains contentious in the colonial mainstream. The state’s recognition of Indigenous culture is an empty gesture for Indigenous people whose culture relies on reclaiming land. Coulthard refers to the “politics of recognition” (2014a, 25) as offering Indigenous people a limited bundle of rights while stopping well short of demands for self-determination and freedom or unfettered access to land (Coulthard 2014a). As Indigenous culture “sits in place”, Indigenous agency constantly tests the hegemonically sanctioned limitations on culture. This “radical alterity” is cemented through Indigenous refusal to buy into the capitalist development ideal that is premised on the private exploitation of their

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land and resources. As Catherine Walsh maintains that this “very idea of development itself is a concept and word that does not exist in the cosmovisions, conceptual categories, and languages of Indigenous communities” (Walsh 2010, 17). For this reason, Indigenous reconnection to land is a site of resurgence and decolonisation because, according to Coulthard (2014b, 171, 176), it breaks the dominant preoccupation with land as an economic resource.

Fresh Contestations The settler state has not ceased dispossessing Indigenous peoples of their land, which is demonstrated in contestations over pipelines, mining and funding homelands. In 2014, the Australian Government announced it was withdrawing AU$90 million from almost 200 remote Indigenous communities in Western Australia, most in the far north Kimberley region. This stripped Indigenous “homelands” in remote communities of utilities and services. Just before the announcement, the state government bulldozed the Oombulgurri community in the East Kimberley. It forced the local Balanggarra people, who wanted to return to their homeland of Oombulgurri, to become homeless and destitute in the town of Kununurra (Solonec 2014). The government decision, made on the basis that the Aboriginal community was dysfunctional (a modern colonial trope), was contrary to evidence that Indigenous people thrive on traditional homelands and have better health outcomes than those living in towns: Homeland residents have participated in various health research projects over the last 20 years or so. These studies point very strongly to significant improvements in health outcomes for Aboriginal Peoples in remote areas if they live in homeland communities, compared with Aboriginal Peoples who live in major towns. Homelands are seen as places of respite. Many play a role in rehabilitation of addicts and offenders. (Amnesty International 2011, 13)

The distinction between Indigenous people operating from the value of place and whites operating in space should not be turned into a rigid binary. Young Indigenous people in particular have become adept players in the

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use of technologies, and talk of “walking in two worlds” as they flesh out syncretised cultural practices. These practices fuse together elements of Indigenous and non-Indigenous worldviews, but not at the expense of their identities as Indigenous people; while many non-Indigenous people are discovering the importance of place as a focal point for new politics around the environment and anti-globalisation. However, the basic premise of Indigenous people being embedded in place remains relevant. This includes in structuring roles and work within criminal justice response services. Field work on Indigenous family violence (Blagg et  al. 2018) looked at the roles among nonAboriginal and Aboriginal workers in Aboriginal family violence legal services: organisations that provide assistance to Aboriginal victims/survivors of family violence and sexual assault. Typically, such legal services include a mix of, usually, white lawyers and Aboriginal community workers. We found that the Aboriginal workers tended to be present in place, while the legal professionals tended to deal with space and flow. This had genuine repercussions for how priorities and strategies were defined. For the lawyers, most of their activities and energies were focused on the court, where “the real work” took place. Furthermore, they only tended to see Aboriginal women as “clients” and Aboriginal men as “perpetrators”. This influenced how they viewed “success” in their work, largely in terms of “metrics” and “deliverables”, as demonstrated in the numbers of restraining orders granted. The Aboriginal workers  in Aboriginal family violence legal services were working in an entirely different way. From their position “in place”, they understood the reciprocal ties of obligation mean that for many women exiting an abusive relationship is fraught. They operated on theories of violence that privilege the destructiveness of colonial policy and the creation of a “patriarchal white sovereignty” (Moreton-Robinson 2007), rather than de-racialised and decontextualised notions of male power and patriarchy as underlying communal violence. While not disputing that offenders need to be made accountable (seeing this in terms of accountability under Indigenous as well as, or instead of, white law), they tended to see solutions in terms of community and family healing rather than the white legal system (Cox et al. 2009).

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“Epistemologies of the South” Renewed “epistemologies of the South” (de Sousa Santos 2008; Comaroff and Comaroff 2012a) are increasingly counter-posing Eurocentric constructions of modernity’s spatial flows. They provide alternative readings of history that underline the extent to which modernity and late modernity have developed hand in glove with colonialism (modernity’s “underside” (Walsh 2010, 15) or “shadow” (Blagg 2016)). For Indigenous activists and critical scholars, colonial settlement remains the fundamental fault line, and point of resistance. Goenpul woman and professor Aileen Moreton-Robinson presents this argument thus: Indigenous people … position all non-Indigenous people as migrants and diasporic. Our ontological relationship to land, the ways that country is constitutive of us, and therefore the inalienable nature of our relationship to land, marks a radical, indeed incommensurable, difference between us and the non-Indigenous. This ontological relation to land constitutes a subject position … which cannot be shared with the postcolonial subject whose sense of belonging in this place is tied to migrancy. (Moreton-­ Robinson 2003, 45)

In relation to land or “Country”, Indigenous Australians’ sensibilities of belonging are, as Moreton-Robinson (2003) explains, incommensurate with Western notions of occupation and ownership. Indigenous people both possess and are, in turn, possessed by Country. Deborah Bird Rose describes this eloquently: Country in Aboriginal English is not only a common noun but also a proper noun. People talk about country in the same way that they would talk about a person: they speak to country, sing to country, visit country, worry about country, feel sorry for country, and long for country. (Bird Rose 1996, 7)

The centrality of land to First Nation peoples is summarised by Rowe and Tuck thus:

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Settler societies often regard land only in the constructs of property or natural resource. Indigenous understandings of land predate and have codeveloped alongside and in spite of settler constructions of property. For Indigenous societies, land is peoplehood, relational, cosmological, and epistemological. Land is memory, land is curriculum, land is language. “Land” also refers to water, sky, underground, sea. (Rowe and Tuck 2017, 5)

Sites of Place-Based Resurgence Place is also becoming a site of resurgence and contestation in the area of diversionary strategies for youth. In the Kimberley region of Western Australia, the Kimberley Aboriginal Law and Cultural Centre (KALACC), an influential community-controlled body representing the interests of Kimberley Aboriginal people in relation to cultural issues, is engaged in developing alternatives to prison based on “community-owned” justice mechanisms on Aboriginal Country. In particular the Yiriman Project, which provides an intensive cultural immersion and “healing” experience on traditional lands for young people (Blagg 2012; Blagg et al. 2018). In other parts of the Kimberley, Traditional Owners are attempting to create similar projects, leveraging off their, limited, ownership of land under Australia’s Native Title regime, to create on-country projects that build a “hybrid economy” somewhere in between the mainstream world of work and Indigenous cultural practices. These practices involve working with, rather than exploiting, the land by nurturing native fruits and medicines. Traditional Owner groups, such as the Yawuru people in the Kimberley, aim to build partnerships with mainstream agencies that will see on-­ country engagement in the hybrid economy replacing involvement in the white justice system for many Yawuru people. The resurgence of land use and connection provides a new life cycle for those routinely rotated through the prison system because they are dispossessed of Country, the victims of failed white policies of social engineering, or survivors of inter-­ generational trauma. In the foregoing sections, we have attempted to disrupt criminology’s analyses of dis-embedded spatial interactions, including in relation to Indigenous people, by pointing to the uniqueness and radical alterity of

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Indigenous worldviews and their embeddedness in place. Nor can the settler state’s punishment of the Indigenous Other be “counter-worlded” (Spivak 1988) with reference to Bauman’s theory of “liquid modernity” (2001). Indigenous resurgence is taking place through an engagement with Country and laying claim to land as the bedrock of Indigenous identity. The following section considers whether there is a role for state-­ based sovereignty within Indigenous claim-making and localised Indigenous nation building.

Indigenous Manoeuvres in International Law: Resurging, Reclaiming or Reaffirming State Sovereignty? The genesis of international law lies in colonial claims to sovereignty (see Anghie 2007). Just as the formation of the nation state brought into existence a centralised criminal justice system, it also brought into play new land grabs and a system of international law to uphold such grabs. When the colonies imposed their nation states on Indigenous land, to bring them within their Empires, they exported their criminal justice systems and made Indigenous people its object to further the colonial project (see Agozino 2003). International law is inherently state-based, privileging the interests of state parties of the imperial Global North. Moreton-­ Robinson (2011, 642) has described the United Nations as “primarily a statist organisation” that consecrates in Article 2 of its charter “the doctrine of equal sovereignty, territorial integrity and non-intervention”. In such a context, Indigenous peoples have approached international law with scepticism (see e.g. Watson 2018), regarding it as reaffirming the sovereignty of states against the sovereignty of Indigenous people over their lands. It provides a platform for states to speak on behalf of Indigenous people, while removing their rights and discriminating against their humanity. Furthermore, the universality and universalising aspirations of international law run against Indigenous place-based approaches and jurisprudence that regards land as the source of law (Watson 2018, Black 2011). Indigenous peoples have suffered primary and secondary harm in the international law system. On the one hand,

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they have been disempowered in international law-making and adjudication processes because they have no standing to contribute, with states acting as weak advocates (if not outright opponents) of Indigenous rights in the international law fora. On the other hand, Indigenous people are disempowered because international law provides a basis for states to thwart Indigenous domestic claims for sovereignty. Indigenous people have nonetheless carved out spaces in international law that further their claims. In the post-War period when the West were forced to retreat from their Empire building work, and the East was placing greater emphasis on economic, social and cultural rights in the international law arena (as opposed to the West’s emphasis on political and civil rights), Indigenous peoples’ concerns were addressed in the 1950s in International Labor Organization conventions and the work of the Working Group on International Populations. In those fora, state parties were the primary players in negotiating Indigenous rights. Indigenous peoples saw this as paradoxical given that states persisted in asserting their sovereignty in international law against the rights of Indigenous people to their land (see e.g. Schulte-Tenckhoff and Hasan Khan 2011, 696). Since then, Indigenous people have sought to appropriate and subvert international law. By the end of the twentieth century there was a meaningful shift in the jurisdiction and jurisprudence of Indigenous rights in international law. Indigenous people became subjects, rather than objects; actors, rather than observers, in the formation of international laws affecting them, especially through the work of the United Nations Permanent Forum on Indigenous Peoples (Moreton-Robinson 2011, 642). This work led to the drafting of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its adoption by the United Nations General Assembly in 2007. This document, premised on the principle of self-determination, was a response “to the aspirations of indigenous peoples worldwide to be in control of their own destinies under conditions of equality, and to participate effectively in decision-­ making that affects them” (Anaya 2009, 14). Through the UNDRIP process, Indigenous people have come to be recognised as important players in reshaping international laws on their own terms and de-centring state decision-making.

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Former Special Rapporteur on Indigenous Rights, James Anaya (2008), spoke of the expanding participation of Indigenous peoples in the international law realm, including by asserting their rights before human rights bodies and agencies such as the World Bank. In the 2009 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Anaya (2009) noted the value of Indigenous participation on the global stage as a means of fulfilling requirements of self-determination, including by adjudicating human rights violations at an international level. He observed that, “Indigenous peoples have a greater voice at the international level than ever before”, notwithstanding the need for further “involvement of indigenous peoples in the development of international standards and programmes that concern them” (Anaya 2010, 13–14). On the ground, there has been uneven implementation of Indigenous rights under UNDRIP and ILO Convention 169 (Indigenous and Tribal Peoples Convention). Countries in South America, for instance, have enforced these instruments in domestic laws and Indigenous peoples can access the Inter-American Court of Human Rights to adjudicate their rights (see Organisation of American States 2014). Accordingly, they have had greater success in using international law to uphold their rights compared to most other Indigenous peoples. However, even there, access to rights is merely a counterweight to state authorisations of unlawful activity, especially relating to mining and logging on Indigenous lands.

 ritical Perspectives on Indigenous Peoples’ C Involvement in International Law Critical scholars and activists challenge international rights-claiming processes for reaffirming the role of the state over Indigenous peoples, rather than channelling Indigenous sovereignty claims over their land. Professor Irene Watson (2014, 509), who belongs to the Tanganekald, Meintangk Boandik First Nations Peoples, asserts that the framework of UNDRIP reinstates the “possessive logic” of colonisation. For criminologists, this raises a critical question about whether rights-claiming processes do little to renegotiate the role of the state in criminalising and incarcerating

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Indigenous people. Indeed, despite their commitment to UNDRIP over the past decade, settler states in Canada, Australia and Aotearoa/New Zealand have pursued practices and policies that have contributed to exponential increases in Indigenous incarceration and child removals. The outcomes of Indigenous international rights claiming processes do not challenge state sovereignty and, even in the limited rights they uphold, remain contingent on state implementation (which is sorely tested). The New Zealand Government, for instance, made it clear in endorsing UNDRIP that implementation would not compromise the “legal and constitutional frameworks that underpin New Zealand’s legal system” (Toki 2011, 34, citing the New Zealand Minister Sharples). The drafting of UNDRIP itself was constantly offset by states attempting to puppeteer the process: states sent their representatives to attend Permanent Forum meetings; nominated Indigenous members; contributed to the drafting and decided on the final form that went before the General Assembly. Aileen Moreton-Robinson (2011) claims that UNDRIP sets up the illusion of Indigenous recognition without reordering the state. Postcolonial scholars have criticised the United Nations Permanent Forum on Indigenous Issues and UNDRIP for failing to give expression to collective, place-based rights of Indigenous peoples. Schulte-Tenckhoff and Hasan Khan (2011, 684) contend that UNDRIP reproduces “universal human rights law” in “taking into account the cultural, political and social living conditions of Indigenous peoples”, without attending to their distinct collective interests and sovereign rights to land. Further, they suggest that “the Permanent Forum is a relevant illustration of the processes of appropriation and deradicalisation of subaltern or decolonial endeavours within established institutions, in the interest of the institution, and, in this instance, of its member states” (Schulte-Tenckhoff and Hasan Khan 2011, 674). The authors quote a working paper to evidence their claim: The Permanent Forum sustains the limitation of collective rights to their least controversial aspect—namely human rights exercised by individuals in a community with other members of their group, as opposed to group rights claimed by non-state groups as such. Here, the debate mainly hinges on what has come to be termed “internal self-determination”—that is, “the

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right to effective, democratic governance within states, making it possible for the population as a whole to determine their political status and pursue their development”. (2011, 687, references omitted)

Regional Indigenous Nation Agreements Place-based mechanisms for Indigenous justice advocacy among Indigenous nations and with nation-states have emerged at a regional and intra-continental level. They create more meaningful and practical responses to local concerns than the global forums. Regional political and judicial bodies exist inter alia in Latin America (the Inter-American Commission and Court of Human Rights), Africa (the African Union and the African Commission on Human and Peoples’ Rights) and the Arctic Circle (Inuit Circumpolar Council ICC). The Inter-American Commission and Court of Human Rights and the African Commission on Human and Peoples’ Rights have provided important avenues for the adjudication of rights under UNDRIP and the ILO Conventions on Indigenous Peoples. An Advisory Opinion of the African Commission on Human and Peoples’ Rights (2010) has stated that the rights enshrined in the UNDRIP were consistent with the African Charter on Human and Peoples’ Rights and the jurisprudence of the African Commission. The Inter-American Commission and Court of Human Rights have provided a mechanism for the reporting and ­complaint handling of violations of Indigenous rights domestically in Latin America. The regions have also developed their own jurisprudence in relation to the protection of Indigenous property, cultural, socio-economic and political rights, which elaborates on international standards set in UNDRIP to provide place-based responses (Pentassuglia 2011). The Inter-American Court on Human Rights in Awas Tingni Community v Nicaragua (Merits, Reparations and Costs) (2001, [151]) elaborated on Indigenous property rights, including that traditional Indigenous possession of lands is equivalent to full ownership. Elsewhere, the court upheld that rights to land persist as long as an Indigenous community maintains its unique relationship to such lands, even where those communities have

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unwillingly left their lands for reasons outside their control (Xákmok Kásek Indigenous Community v Paraguay (Merits, Reparations and Costs) (2010, [112]); Case of the Moiwana Community v. Suriname (Preliminary Objections, Merits, Reparations and Costs) (2005, [133])). The African Commission on Human and Peoples’ Rights has required the Kenyan state to make restitution by returning land or, where that is impossible, provide alternative lands and fair compensation to the Endorois Community (Centre for Minority Rights Development v Kenya 2009, [234]). In making its decision, the Commission referred to the African Charter on Human and Peoples’ Rights as well as UNDRIP’s provisions for restitution of lands and compensation (2009, [232]), notwithstanding that at the time the Kenyan state had abstained from approving UNDRIP in the General Assembly (2009, [155]). Regional bodies, however, are not simply configured along state lines. They are also networks of Indigenous peoples who have been divided by state and regional/continental boundaries. The Inuit Circumpolar Council, for instance, comprises Inuit people across Alaska, Greenland, Nunavut and Chukchi. The current Chair of the Inuit Circumpolar Council, Dalee Sambo Dorough (2018), is an Inupiaq woman and researcher from Anchorage and Unalakleet, Alaska, and previously served as the Chair of the UN Permanent Forum. She reflects on the crisis presented by statehood for Inuit people and calls for the erasure of “imposed borders and of nationhood”. She regards the Inuit Circumpolar Council as giving effect to the “oneness of our people”. Dorough (2018) pronounced that as Inuit people, We have determined our political status—we are distinct peoples, with distinct rights that inhabit a distinct region of the world. Therefore, we must ensure that Inuit, at all levels, are not hindered or stifled in their expressions of self-determination in every realm. In this regard, we must be able to “freely pursue our economic, social and cultural development”.

For the Inuit Circumpolar Council, “self-determination and self-­ sufficiency” of Inuit people across national borders are necessary responses to state sovereignty and for ensuring Inuit survival (Dorough 2018). The threats to sustainability that are presented by the “geopolitical and geostrategic

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reality of the current Arctic five nation states [Canada, Norway, Russia, Denmark and the United States]” are offset, according to Dorough (2018), by “our own economic and political force” and our generations of unmatched experience in the protection of our Arctic homelands. Dorough (2018) resists an expression of Inuit self-determination that replicates the “structures, procedures and substance” of settler governance, and instead calls for incorporation of “our own protocols, customs, practices, values and institutions”, including through the “Inuit governance institution” of the ICC.

 alaallit Self-Government: A Step Towards K Self-Determination The claims of the Inuit people of Greenland, the Kalaallit Nunaat, have utilised the processes of self-government to separate from the Danish government that ruled Greenland since 1721. The Kalaallit people have achieved almost complete sovereignty: Home Rule from Denmark in 1979 (by forming their own territory and parliament) (Alfredsson 2010, 159–160) and independent police, courts and coastal guards since 2009. Their self-government has enabled the Kalaallit people to access and control sub-soil resources and the seabed off Greenland to generate revenue from oil and gas. However, this has also come at a cost with pressure placed on Greenland to rescind a ban on mining uranium, which presents new ecological threats (Williams 2017). To facilitate territorial independence, the Greenland-Danish Self-­ Government Commission was formed in 2003 in order to make proposals for the legal status of Greenland under both international and Danish law. The Commission called for self-government “in accordance with the right to self-determination of the people of Greenland under international law” (Greenland-Danish Self-Government Commission 2008, 5). A referendum for self-government was passed in 2008. The Naalakkersuisut is the government of Greenland, and Greenland’s people are recognised as a separate people under international law. Self-government in Greenland has been described as a move towards the “world’s first Inuit state” (Nuttall 2008). However, Greenland remains a country in Denmark’s Commonwealth and subject to its foreign affairs and defence jurisdiction (see Strandsbjerg 2014).

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Greenland’s Government (which includes a Parliament “Inatsisartut”, a Prime Minister, Executive and multi-party legislature) has many of the traits of Western forms of governance, legality and land relations. Nonetheless, Nuttall (2008, 70) argues that it is a “Faustian bargain Greenland appears willing to strike”. The Inuit Circumpolar Council does not conceive Kalaallit self-­ governance as the realisation of self-determination, but merely stage in the collective Inuit movement towards self-determination and sustainability of the Arctic’s maritime environment. Outside of Greenland, Inuit people remain constrained by the sovereign states of the Arctic (notwithstanding the claiming of political rights and territories by Inuit people in Nunavut, located in the northern territories of Canada) and geo-­corporate imperatives of their ruling classes. Greenland also remains dependent on exploiting oil and gas for a capitalist market. These are significant challenges for Inuit people’s self-determination and sustainability. The Inuit Circumpolar Council provides a mechanism for mediating global forces with a place-based response.

Indigenous Sovereignty-Making Beyond and Against Statehood Indigenous sovereignty-making is not a fixed concept but “inheres in its creator”, according to critical anthropologist Tom Dillehay (2016), and can lie in rights to territories, culture and internal self-government. Indigenous political expressions can err towards a network of relationships rather than a hierarchy of power that resonates with the coloniser’s political architecture (Dillehay 2016). Politics is interconnected with all aspects of Indigenous Law-making and belonging. For instance, Mapuche’s claims in the south-central Andean region of Chile embed sovereignty-making through asserting the right to recapture their historical identity, to reinvigorate their ways of life, to reconnect with and regain their traditional lands, to protect their heritage, to revitalize their languages and manifest their culture-all of these rights are as important to indigenous people as the right to make decisions in their internal political, judicial, and economic settings (Dillehay 2016).

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The Australian and the United States nation-building project also identifies how Indigenous nations have created governing structures to partner with government agencies to further their goals of self-­ determination (Vivian et  al. 2017). These nations traditional political theory and jurisprudence alongside Indigenous notions of sovereignty to make a case for co-existing Indigenous and non-Indigenous nations, pointing out that Federalism in Australia and the United States provides for multi-layered and devolved political governance (Vivian et  al. 2017, 218). States have found it difficult to eschew state-centric approaches, including in the process of modern treaty-making in British Columbia, Canada. Alfred and Rollo (2012) point out that the negotiation of modern treaties in “good faith” has been encumbered by the politics of government and its tendency to reassert “colonial sovereignty”. There have been some promising developments such as an agreement-in-principle by the state to transfer powers to the Kitselas First Nation, including with respect to child protection services, summary offences, dispute r­ esolution, cultural heritage, certain taxation and specified lands, waterways, resources and wildlife (see Kitselas First Nation 2012). However, ultimately the aim of the Kitselas First Nation is self-governance and liberation from the Indian Act (see Chap. 5). Indigenous nation building demonstrates that Indigenous self-­ governance need not replicate the structures of statehood; structures which have oppressed Indigenous people in the pursuit of a universal political legitimacy and hegemony. Rather, place-based Indigenous sovereignty-­making that honours relations with land and culture and co-­ exists with other governance structures provides a powerful antidote to singular, state-centred approaches. “New modalities of sovereignty” are built from negotiated co-existence between Indigenous and non-­ Indigenous nations, as explained by June McCue (2007, 29) of the Ned’u’ten people of the Lake Babine First Nation in British Columbia. It is a “different structure” that prioritises “peaceful relations” rather than a world of borders (2007, 29).

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References African Commission on Human and Peoples’ Rights (2009) “276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) /Kenya”. 46th Ordinary Session, 11–25 November. http://www.achpr.org/communications/decision/276.03/ African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples (2010) “Advisory Opinion”. https://www.iwgia.org/images/publications/0460_ACHPR_Advisory_ Op-UNDRIP_UK_2010.pdf Agozino B (2003) Counter-Colonial Criminology: A Critique of Imperialist Reason. London: Sterling. Alfred T (2005) Wasáse: Indigenous Pathways of Action and Freedom. Toronto: University of Toronto Press. Alfred T and Rollo T (2012) “Resetting and Restoring the Relationship Between Indigenous Peoples and Canada”. https://ipsmo.files.wordpress.com/2012/ 12/idlenomore_handout.pdf Alfredsson G (2010) “Human Rights and Indigenous Rights”. In N Loukacheva (ed) Polar Law Textbook. Copenhagen: Nordic Council of Ministers. Amnesty International (2011) The Land Holds Us: Aboriginal Peoples’ Right to Traditional Homelands in the Northern Territory. Sydney: Amnesty International. https://www.amnesty.org.au/the-land-holds-us-aboriginalpeoples-right-to-traditional-homelands/ Anaya J (2008) “Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People”. Report to the Human Rights Council, A/HRC/9/9, 11 August. http://unsr.jamesanaya. org/annual-reports/report-to-the-human-rights-council-a-hrc-9-9-11aug-2008 ——— (2009) “Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People”. Human Rights Council, 12th Session, Agenda Item 3 (15 July 2009). ——— (2010) “Situation of Human Rights and Fundamental Freedoms of Indigenous People”. Annual Report to the General Assembly, 65th Session, Item 66(a) of the Provisional Agenda, 9 August. Anghie A (2007) Imperialism, Sovereignty and the Making of International Law. Cambridge University Press. Anthony T (2018) “Growing Up Surplus to Humanity: Aboriginal Children in the Northern Territory”. Arena Journal 51/52: 40–70. Bauman Z (1991) Modernity and the Holocaust. Cambridge: Polity.

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——— (1997) Postmodernity and its Discontents. Cambridge: Polity. ——— (2001) Liquid Modernity. Cambridge: Polity. ——— (2004) Wasted Lives. Modernity and Its Outcasts. Cambridge: Polity. Behrendt L (2003) Achieving Social Justice: Indigenous Rights and Australia’s Future. Sydney: Federation Press. Bird Rose D (1996) Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness. Canberra: Australian Heritage Commission. Black C (2011) The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence. London: Routledge. Blagg H (2012) “Re-Imagining Youth Justice: Cultural Contestation in the Kimberley Region of Australia since the 1991 Royal Commission into Aboriginal Deaths in Custody”. Theoretical Criminology 16(4): 481–491. ——— (2016) “From Terra Nullius to Terra Liquidus—Liquid Modernity and the Indigenous Other”. In A Eriksson (ed) Punishing the Other: The Social Production of Immorality Revisited. Oxon: Routledge, 230–246. Blagg H, Williams E, Cummings E, Hovane V, Torres M and Woodley K (2018) Innovative Models in Addressing Violence Against Indigenous Women: Final Report. ANROWS Horizons, 01/2018. Sydney: Australia’s National Research Organisation for Women’s Safety Limited. Castells M (1999) “Grassrooting the Space of Flows”. Urban Geography 20(4): 294–302. ——— (2010) The Rise of The Network Society. 2nd ed. Cambridge: Cambridge University Press. Cohen R (2008) Diaspora Studies: An Introduction. Oxford: Routledge. Comaroff J and Comaroff J L (2012a) Theory from the South: Or, How Euro-­ America is Evolving Toward Africa. London: Paradigm Publishers. Coulthard G (2014a) Red Skin, White Masks: Rejecting the Colonial Politics of Recognition. Minneapolis: University of Minnesota Press. ——— (2014b) “Place Against Empire: The Dene Nation, Land Claims, and the Politics of Recognition in the North”. In A Eisenberg, J Webber, G Coulthard and A Boisselle (eds) Recognition Versus Self-determination: Dilemmas of Emancipatory Politics. Vancouver: University of British Columbia Press, 147–173. Cox D, Young M and Bairnsfather-Scott A (2009) “No Justice Without Healing: Australian Aboriginal People and Family Violence”. Australian Feminist Law Journal 30(1): 151–161. de Sousa Santos B (ed) (2008) Another Knowledge Is Possible: Beyond Northern Epistemologies. London: Verso.

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Dillehay T D (2016) “Reflections on Araucanian/Mapuche Resilience, Independence and Ethnomorphosis in Colonial (and present-day) Chile”. Chungara (Arica) 48(4): 691–702. Dorough DS (2018) “2018 Inuit Circumpolar Council General Assembly: Remarks by Incoming ICC Chair, Dalee Sambo Dorough”. Northern Public Affairs Magazine, 9 August. http://www.northernpublicaffairs.ca/index/ 2018-inuit-circumpolar-council-general-assembly-remarks-by-incomingicc-chair-dalee-sambo-dorough/ Epstein A B (2015) “The Colonialism of the Present: An interview with Glen Coulthard”. Jacobin, 13 January. https://www.jacobinmag.com/2015/01/ indigenous-left-glen-coulthard-interview/ Escobar A (2001) “Culture Sits in Places: Reflections on Globalism and Subaltern Strategies of Localization”. Political Geography 20(2): 139–174. Falk P and Martin G (2007) “Misconstruing Indigenous Sovereignty: Maintaining the Fabric of Australian Law”. In A.  Moreton-Robinson (ed) Sovereign Subjects: Indigenous Sovereignty Matters. Sydney: Allen & Unwin, 33–46. The Greenland-Danish Self-Government Commission (2008) “Report on Self-­ Government in Greenland: Executive Summary”. https://naalakkersuisut. gl/~/media/Nanoq/Files/Attached%20Files/Engelske-tekster/Summary%20 of%20the%20paper.pdf Grewcock M (2018) “Introduction: Mapping the Contours of State Crime and Colonialism”. State Crime, State Crime, Special Edition on Colonialism, 7(2): 167–172. Idle No More (2019) “The Vision”. http://www.idlenomore.ca/vision Kitselas First Nation (2012) “Agreement in Principle”. https://kitselas.com/ departments/treaty/agreement-in-principle/ Marchetta M (1992) Looking for Alibrandi. Sydney: Penguin. McCue J (2007) “New Modalities of Sovereignty: An Indigenous Perspective”. Intercultural Human Rights Law Review 2: 19–29. Meyer L and Maldonado Alvarado B (eds) (2010) New World of Indigenous Resistance: Noam Chomsky and Voices from North, South, and Central America. San Francisco: City Lights. Moreton-Robinson A (2003) “I Still Call Australia Home: Indigenous Belonging And Place in a White Postcolonising Society”. In S Ahmed, C Castañeda, A M Fortier and M Shellyey (eds) Uproot-ings/regroupings: Questions of Postcoloniality, Home and Place. Oxon: Berg, 23–40. ——— (2007) “Writing Off Indigenous Sovereignty: The Discourse of Security and Patriarchal White Sovereignty”. In A Moreton-Robinson (ed) Sovereign Subjects: Indigenous Sovereignty Matters. Sydney: Allen & Unwin, 86–102.

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——— (2011) “Virtuous Racial States: The Possessive Logic of Patriarchal White Sovereignty and the United Nations Declaration on the Rights of Indigenous Peoples”. Griffith Law Review 20(3): 641–658. Nuttall M (2008) “Self-Rule in Greenland: Towards the World’s First Independent Inuit State?” Indigenous Affairs 3–4: 64–70. Organisation of American States (2014) “IACHR Takes Case Involving Kalina and Lokono Peoples v. Suriname to the Inter-American Court”. Press Release, 4 February. http://www.oas.org/en/iachr/media_center/PReleases/2014/009.asp Pentassuglia G (2011) “Towards a Jurisprudential Articulation of Indigenous Land Rights”. European Journal of International Law 22(1): 165–202. Povinelli E (2002) The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism. Durham, NC: Duke University Press. Preston C J (2003) Grounding Knowledge: Environmental Philosophy, Epistemology and Place. Athens: University of Georgia Press. Rowe A C and Tuck E (2017) “Settler Colonialism and Cultural Studies: Ongoing Settlement, Cultural Production, and Resistance”. Cultural Studies—Critical Methodologies 17(1): 3–13. Schulte-Tenckhoff I and Hasan Khan A (2011) “The Permanent Quest for a Mandate: Assessing the UN Permanent Forum on Indigenous Issues”. Griffith Law Review 20(3): 673–701. Sheller M and Urry J (2006) “The New Mobilities Paradigm”. Environment and Planning 38: 207–226. Solonec T (2014) “The Trauma Of Oombulgurri’s Demolition Will Be Repeated Across Western Australia”. Guardian Australia, 27 November. https://www. theguardian.com/commentisfree/2014/nov/27/the-trauma-of-oombulgurrisdemolition-will-be-repeated-across-western-australia Spivak G C (1988) “Can the Subaltern Speak?” In P Williams and L Chrisman (eds) Colonial Discourse and Post-Colonial Theory: A Reader. New  York: Columbia University Press, 66–111. Strandsbjerg J (2014) “Making Sense of Contemporary Greenland: Indigeneuity, Resources and Sovereignty”. In R C Powell and K Dodds (eds) Polar Geopolitics?: Knowledges, Resources and Legal Regimes. Cheltenham: Edward Elgar Publishing, 259–276. Toki V (2011) “Indigenous Rights—Hollow Rights?” Waikato Law Review 19(2): 29–43. Tuck E and McKenzie M (2015) “Relational Validity and the ‘Where’ of Inquiry: Place and Land in Qualitative Research”. Qualitative Inquiry 21(7): 633–638.

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Vivian A, Jorgensen M, Reilly A, Mcmillan M, Mcrae C and Mcminn J (2017) “Indigenous Self-Government in the Australian Federation”. Australian Indigenous Law Review 20: 215–242. Walsh C (2010) “Development as Buen Vivir: Institutional Arrangements and (De)Colonial Entanglements”. Development 53(1): 15–21. Watson I (2014) “The 2007 Declaration on the Rights of Indigenous Peoples: Indigenous Survival—Where to from Here?” Griffith Law Review 20(3): 507–514. ——— (2018) Indigenous Peoples as Subjects of International Law. Oxon: Routledge. Williams B (2017) “Greenland Inuit Oppose Open-pit Uranium Mine on Arctic Mountain-top”. The Ecologist. https://theecologist.org/2017/aug/17/ greenland-inuit-oppose-open-pit-uranium-mine-arctic-mountain-top Wolfe P (2006) “Settler Colonialism and the Elimination of the Native”. Journal of Genocide Research 8(4): 387–409.

Legal Materials Case of the Moiwana Community v. Suriname (Preliminary Objections, Merits, Reparations and Costs), Series C No. 124 (2005). Case of the Xákmok Kásek Indigenous Community v Paraguay (Merits, Reparations and Costs) Series C No. 214 (2010). Inter-American Court of Human Rights, Awas Tingni Community v Nicaragua (Merits, Reparations and Costs) Series C No. 79 (2001).

4 Decolonising Criminology Methodologies

Place-based knowledges constitute a challenge to the methodologies of the Global North that universalise data and experiences. Criminology in its positivist and administrative guises relies on empirical data as a neutral set of observations. It is devoid of an understanding of place, history and standpoint. Postcolonial critique has increasingly questioned this neutrality, maintaining that the Western social sciences of the Global North implicitly frame the world on the basis of Western presuppositions. Jacques Derrida, whose critical philosophical thought would go on to influence postcolonial studies, referred to “western metaphysics” as ideological rather than scientific (Derrida 1978, 282). Self-styled “scientific methods”, drawn from the Western canon of natural sciences, embedded imperialist “regimes of truth” (Smith 1999, 77). They made claims to “discovery and newness” (Maldonado-Torres 2011, 1), valorised the superiority of Western knowledge and normalised the occupation and control of the Indigenous place (remapping it as colonised space). The deficit approach in Western Criminology’s methodology—a search for the problems of Indigenous people—self-fulfils findings and narratives of deficit that settler colonisers produce about Indigenous peoples. Accordingly, Edward Said’s (1993) “contrapuntal” reading of ­history, © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_4

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described in Chap. 2, must also apply to a reading of methodology. A contrapuntal reading disrupts normalised truths that underpin methodologies of the Global North. In the colonial criminal justice system, these truths include the universal legitimacy of the imported criminal law system, Indigenous criminality and the invalidity of Indigenous Laws and their punishment systems. Flowing from these truths, positivist criminology produces skewed questions: how can the universal criminal justice system apply more effectively; why is there Indigenous criminality; what domestic and international laws conflict with Indigenous Laws to confirm their invalidity (see Table 1.1)? Criminal characterisations of the Other have long shadows; Edward Said (1980, 490) stated that the imperialist culture in the United Sates essentialises and caricatures the “Moslem and Arab” “Other” in the Islamic world as “either oil suppliers or potential terrorists”, with “very little of the detail, the human density, the passion of Arab-Moslem life”. A postcolonial methodology, by contrast, inverts Western Criminology’s premise for research (i.e. Indigenous people = deficit) to perceive strengths of Indigenous nations, laws and peoples and the weaknesses of the colonial state’s response as its starting point. Said (1993, 318) points to the impossibility of neutrality by turning his gaze to the dynamics of power.

The Cloak of Neutrality Something as seemingly neutral as a community safety survey, produced by Western Criminologists, can reflect and embody profoundly Eurocentric views about the world and what the “average” citizen (read: white, urban, employed) sees as a “problem” and tends to privilege white concerns around burglary, car theft and youth on the street. Reformulating these instruments for an Indigenous audience may mean prioritising problems such as the harm presented by the criminal justice and child protection system or by pollution and water theft. It may mean taking a lens to “jealousing” (deliberately making a person jealous in order to provoke aggression), feuds on social media and even “cheeky” dogs that threaten the safety of Aboriginal town camps. The individualised survey approach simply may not be a good way of capturing the fears, concerns

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and attitudes of Indigenous people and may need to be entirely re-­ constructed to meet their needs. This experience has been documented by Tangentyere, an Indigenous-owned housing service in Alice Springs, where a telephone survey about state-imposed alcohol restrictions failed to grasp Indigenous perspectives (Anthony and Sherwood 2018). In response, Tangentyere set up its own survey that engaged Indigenous residents in its formulation and dissemination and focused on the holistic wellbeing needs of Indigenous people in relation to alcohol controls (Forster et al. 2006). The façade of neutrality emerges in statistical inquiries into Indigenous crime. These are premised on assumptions of the Indigenous problem alongside a neutral criminal process. In Australia, sociologist and Palawa woman Professor Maggie Walter has trailblazed critical Indigenous statistical research. In her potent analysis of the limitations of positivist criminal justice statistics on Indigenous people, Walter took to task their failure to identify the colonial power relations underpinning notions of crime and processes of criminalisation (also see Tauri 2016a, 113, 123, 134, who regards such research as presenting a “veil of scientism” while being complicit in “myth construction” about the inferiority of Indigenous people and superiority of the settler state). Walter (2016b, 85) describes the work of Australian crime statistician Don Weatherburn in Arresting Incarceration: Pathways out of Indigenous imprisonment as a prototype of positivist criminology’s engagement with Indigenous issues. She notes that it uncritically accepts “offending behaviour, poor parenting, poor school performance, early school leaving, unemployment and drug and alcohol abuse” as causes of Indigenous imprisonment, rather than social indicators of inequality (2016a, 102–103). Walter contends that these “social facts” are not the “‘cause’ of offending but that offending, over-­representation and these indicators are part of the same landscape of inequality” (2016a, 102–103). Weatherburn avoids the real question of how can non-Indigenous Australia decarcerate Indigenous people? by posing the question “how can they (Indigenous people) be made less deficit and problematic?” (Walter 2016a, 101, italics added). Western Criminology reinforces notions of Indigenous criminality, risk and problems through its positivist analysis (Anthony and Sherwood 2018;

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Marchetti 2017). It purports that the criminal justice system is a rational response to a set of problems arising from irrational criminal behaviour, rather than seeing crimes and the enforcement of criminal procedures as socially and historically constructed. Accordingly, it does not account for the subjectivity of the state and its historical logic or the lived experience of the criminalised. Weatherburn’s (2014) statistical research, for instance, regards imprisonment as a fair process that is determined objectively with reference to criminal histories and the nature of offending. This defies consideration of the partial processes that lead Indigenous people to accumulate criminal histories, especially for minor offences (e.g. disorderly behaviour, offensive language, fine default) and the failure of courts to consider culturally relevant factors that reduce mitigation, including the adverse effect of imprisonment on Indigenous people (as discussed in Fernando (1992) 76 A Crim R 58, see Anthony 2013). In Arresting Incarceration, Weatherburn (2014, 53) claims that systemic racism does not exist because it cannot be measured. Reflecting a Western preoccupation with measuring and enumerating, it fails to comprehend systemic racism is seeped in blindness to one’s own privilege and the circumstances outside of privilege. Blagg et  al. (2005) explain that systemic or institutional racism is not necessarily overt and apparent. Rather, it arises from the application of ostensibly “fair and universal criteria”—treating everyone equally—that in fact entrench disparities and asymmetrical power relations and results in an unfair outcomes for one group (Blagg et al. 2005, 12). Accordingly, systemic racism emerges unintentionally by way of adherence to dominant values, systems and procedures that exclude Indigenous people (Gray et  al. 2008, 119). Through these processes, “whiteness is discursively active regardless of its (in)visibility”, to use the words of Shaw (2006, 866). Walter proposes that rather than asking: “why are Indigenous people criminals?”, the better question is: what is lived reality of “fourth-world peoples in first-world Anglo colonized nation-states that leads to and results in their dramatic over-representation within their respective criminal justice systems?” (2016a, 103). This includes asking about the criminal justice system’s role in perpetuating Indigenous peoples’ fourth world status (see Bhatia 2012).

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 estern Criminology Eschews Indigenous W Knowledges and Methodologies Indigenous Knowledges and methodologies, sustained Indigenous life and wellbeing for tens of thousands of years (see Chap. 2). Yet Western Enlightenment denounces such knowledge as inferior, “mumbo-jumbo”, unscientific, superstitious, redundant (Maldonado-Torres 2011). Comaroff and Comaroff (2012b, 114) describe the Global South as a repository of “unprocessed data” for the Global North to work on by “ostensibly adding value and refinement”. This is also the case when Western criminologists gauge Indigenous perspectives from the “field” in the production of Western criminology knowledge. While some Western criminologists, especially those undertaking qualitative research, may gesture approvingly in the direction of Indigenous “culture” and seek to include Indigenous issues in their research through ascertaining their views in “consultations” or surveys; the “real” labour takes place somewhere else (usually at our desks), as discussed in Chap. 3. What the Comaroffs describe above—the South only being of “value” when it is, like raw sugar beat, refined by western forms of knowledge production and manufacture, rendered “knowable” within the West’s terms of reference—reflects the status of Indigenous Knowledge once it has been put through the ringer of western scientific methods. Its contours, subtleties, undulations and complex symmetries, ironed out and standardised. The Global North has tended to downgrade the status of Indigenous Knowledge to “folklore” (Grosfoguel 2011) and only appropriate it (generally without recognition) where it fits within a Western frame. In Australia, the “invader” refers to Indigenous Laws as “Dreaming” to undermine its validity as Law and instead uphold the invader’s law (Kwaymullina 2005, 12). There is a tendency to create “museums” of Indigenous cultural knowledge that can be packaged and consumed by the mainstream, but never relied on as a source of law, a foundation of knowledge or a way to know the world. The assumption of this approach to criminological research is that the best of the North provides enlightened solutions for the worst of the South. It does not defer to Indigenous Knowledge, Indigenous forms of

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seeing and knowing the world or place-based Indigenous justice strategies other than through the filter of Western knowledge. At best, Indigenous cultural activity is regarded in terms of “diversion”. This undermines its more vital role of maintaining Indigenous Law and governance that has nothing to do with crime prevention in the white order. This serves to strengthen Western-speak and undermine the authority of Indigenous Laws as no more than a solution to the problems of the Western legal order. At worst, as evident in Weatherburn’s (2014) statistical work, Indigenous cultural activity and justice solutions are unproductive distractions (also see Fitzgerald 2008). This refocuses the gaze onto the real criminal justice system: police, prisons and community corrections (which are never measured for how they have failed Indigenous people and communities).

 on’t Use the C Word: Taking the Colonial Out D of Criminology The erasure of Indigenous places and Knowledges in Western criminology also means the erasure of Indigenous experiences and histories. It obfuscates the ongoing impacts of settler colonial dispossession through processes of territorialism and primitive accumulation. Maggie Walter (2016a, 89–90) refers to the need for criminology research on Indigenous peoples in settler colonies to be couched in past and ongoing struggles for land and sovereignty. Indigenous populations’ socio-economic marginalisation reflects “a very specific social, racial, cultural and economic frame” (Walter 2016a, 90) that needs to be critically analysed in criminological research. Instead, Western criminology, especially its research reliant on administrative data, reduces criminalisation to isolated “problems” presented by “the other” and the “solutions” presented by the state. Western criminology construes and applies risk factors to neutralise criminal justice processes and disconnect criminal data from historical social patterns of oppression (Walter 2016a, 99; see also Klein et al. 2016). Decolonising criminology posits an understanding of the historical, repressive role of penal institutions in settler colonial societies. The colonial state’s treatment of Indigenous peoples was not so much a civilising

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mission as a criminalising and brutalising one. Indigenous people were chained, whipped, segregated and killed for acts as innocent as staying on their country, defending their people and being Indigenous. Penal violence is a continuing feature of prison life and police practices for Indigenous people. The legacy of colonisation operates through dehumanisation of Indigenous people as victims and offenders. In the Northern Territory of Australia, Aboriginal children in detention centres are systematically tortured on mechanical restraint chairs, hooded, beaten and forcefully strip searched (Royal Commission into the Protection and Detention of Children in the Northern Territory 2017). Former detainee and Aboriginal youth, Dylan Voller, said that he was “treated like a dog” in maximum security segregation (Voller 2016, 6). Dehumanisation is also evident in Aboriginal deaths in police custody, including of Yamatji woman Ms Dhu in South Hedland, Western Australia in 2013. Her family said she was dragged “like a dead kangaroo” (Whittaker 2018), which is discussed further in Chap. 9.

 ecolonising Research Praxis: Strengths-Based D and Respect for the Indigenous Domain In working through our own experience of engagement with Indigenous Australia, as privileged white researchers (of English (Blagg) and Cypriot (Anthony) backgrounds), we have turned to critical Indigenous scholarship and relationship building. Our collaborations with activist Indigenous scholars (such as Juanita Sherwood, Victoria Hovane, Larissa Behrendt and Eddie Cubillo) and Aboriginal nations and organisations (such as Tangentyere Council, Kimberley Aboriginal Law and Culture Centre, the Yiriman Project, Nyoongar Patrol, Mudgin-­gal Aboriginal Women’s Group, Aboriginal land councils and Aboriginal health and legal services) have allowed us to view the landscape in colonising terms and see the potential for decolonising methods. We have learned that our research energy and funding can be better spent building the capacity for local Indigenous people to conduct fieldwork and undertake analysis rather than simply sponsoring our own fly-in, fly-out visits.

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We have also learned the role of research in empowering Indigenous communities for advocacy, service and network building and our role in providing support and activist solidarity long after the duration of the official research project. Mostly, we have learnt the need for Indigenous self-determination in research through establishing local Indigenous steering communities and standing Aboriginal reference groups to provide longer-term research planning, ongoing responsiveness to community needs and reciprocation to the communities and people we work with (see Sherwood et  al. 2015; Sherwood and Anthony 2020). This inverts research approaches that fail to recognise Indigenous strengths: their position of power on their place and over their own knowledge, including in relation to the generation of new research. Instead, we problematise the institutional researcher who lacks Indigenous knowledges, languages and understandings of place, local protocols and relationships. Taking our cue also from critical scholarship on “regimes of truth” by Indigenous academics Linda Tuhiwai Smith (1999), Juanita Sherwood (2010), Chelsea Bond (2016), Juan Tauri (2016a, 2018), Yin Paradies (2018), Jo-ann Archibald Q’um Q’um Xiiem, Jenny Bol Jun Lee-Morgan and Jason De Santolo (2019) and postcolonial theorists, we approach the deployment of “methods” tentatively—not as though they were capable, with the necessary refinements and triangulations, of mastering some fundamental objective “truth”. Rather, we regard them as problematic guides, profoundly compromised by their origins within colonial discourse. Traditional debates about the merits of qualitative versus quantitative methods, therefore, particularly in the pursuit of criminological truth claims, seemed to us to have only limited relevance. It is what these methods have in common, rather than what separates them, that remains of interest (and of concern) from a postcolonial perspective; since both construct reality from the same position of ontological certainty, reflecting the implicit superior authority of Western knowledge (Connell 2007). In terms of criminological methodologies, therefore, we think it is vital to adopt a mix of quantitative and qualitative techniques, rather than privileging one approach, and run together theoretical insights from a diversity of disciplines and epistemologies. Gerlach (2018, 1) writes about this approach in terms of “relationality”, which “draws attention to the multiple intersecting influences that shape research and knowledge”— consistent with Indigenous worldviews. She states that relationality

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“provides the necessary epistemological scaffolding to actualize the underlying motives, concerns, and principles that characterize decolonizing methodologies” (2018, 1). Our incorporation of Indigenous perspectives and worldviews does not lie at the margins but maintains a central position among these methods. We err away from the ontological certainty of Western knowledge by destabilising its universality and critiquing the capacity of its techniques to fully account for what justice looks like for Indigenous people. We interrogate the mentalities of state discipline and the normativity of its Western assumptions. We research how the criminal justice infrastructure legitimises the colonial status quo of inequality and dispossession; not out of overt racism, but through adherence to perspectives and methods that misrepresent the causes of Indigenous over-representation and thereby lead to counter-productive policies and practices. Where we use statistics, we do so by asking quantitative questions that focus attention to the risk of the criminal justice system (e.g. the extent to which the police lock up Aboriginal women traveling on public transport) and the wellbeing needs and capacities of Indigenous peoples (e.g. the scope of Aboriginal night patrol services and the types of needs they address). These counter deficit measurements embedded in positivist criminology of the risks that Indigenous people present (e.g. their criminal offending histories, their levels of intoxication), which reproduce stereotypes and entrench patterns of subordination. With our colleagues, we construct our questions to turn criminology’s gaze to the problem of the state and its criminalisation and “diversion” strategies (e.g. Anthony and Sherwood 2018; Anthony and Longman 2017; Blagg et al. 2018; Blagg et al. 2005). But our research is significantly focused on identifying the value of Indigenous programs, organisations and laws. Our strengths-based approach respects Indigenous ways of knowing, doing and being (Anthony and Sherwood 2018). As developed in our research with Juanita Sherwood, an ardent advocate of decolonisation, we do not confine ourselves to asking questions about crime, but also inquiring into Indigenous justice and social, cultural and emotional wellbeing. We are concerned with Indigenous community-led and community-owned safety and injury prevention strategies (such as Aboriginal Night Patrols, Indigenous youth cultural programs and

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Indigenous-owned housing organisations), that deflect a state-centric focus on police, courts, prisons and community corrections (Blagg and Anthony 2014; Anthony and Sherwood 2018).

Not Seeing Indigenous People for the Statistics Much settler colonial criminology is wedded to Euro-north American forms of knowledge and methods that render Indigenous people invisible, even when they are the assumed subjects of criminological research. The unsettling truth is that, despite volumes of research, mainstream criminology still cannot see Indigenous people and the Indigenous domain free from invasive and insidious stereotypes. Further, Indigenous scholars demonstrate that statistical “data” is largely an artefact of subjective white interventions, decisions and recording practices, despite its representation to unambiguously and objectively reflect the reality of Indigenous offending or victimisation (Walter 2016b, 79). Devoid of input from Indigenous peoples, Indigenous life experiences are (mis)-represented in “crime” statistics—they tell a skewed story of repeat offending and criminality. Those of us who question this “fact” are condemned for imposing “normative” judgements onto statistical realities, as though the latter were somehow value free and devoid of agency. Statistics are far from an objective reflection of the world. To give one historical example; remote Western Australia towns such as Fitzroy Crossing, Derby and Halls Creeks in the early 1990s had high rates of Indigenous detention in police lock-ups (where most custodial deaths then took place). Fitzroy Crossing, for example, recorded liquor related detentions at around 80/100 per week (the town’s population was around 1200). This fell suddenly and dramatically when the “prisoner meal” allowance stopped being paid to police sergeants to provide meals for detainees. Police officers who worked in regional Western Australia in those days recall indiscriminately rounding up Aboriginal men, and some women, to fulfil the quota of detainees so the Officer in Charge could make money. Had liquor related offending mysteriously ceased, or was there no longer a financial incentive to incarcerate Indigenous bodies?

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Guidelines for Ethical Research Criminology is in urgent need of addressing the decolonisation of research ethics processes, although such need is by no means restricted to Criminology as a discipline (it covers all instances where non-Indigenous people wish to undertake research in the Indigenous domain). Embedding Indigenous self-determination in research and promoting equitable partnerships between researchers and Indigenous communities are key principle for decolonising research methods (see Sherwood and Anthony 2020). As Ermine et al. (2005, 17) found in their research with Elders in Canada: “ethics is about respect, respect for the whole circle of life”. Elders are scholars in their own right within the First Nations knowledge and law system (Ermine et al. 2005, 14). In Australia and elsewhere, institutional Ethical Guidelines for Research with Indigenous peoples are a response to concerns of unethical research and the exploitation and subordination of Indigenous people for research purposes. These guidelines are useful starting points for creating a new ethical paradigm for research with Indigenous communities. Indigenous people must be involved in co-designing methodologies. The Australian Institute of Aboriginal and Torres Strait Islander Studies, in its Guidelines for Ethical Research in Australian Indigenous Studies, makes this important point: It is essential that Indigenous people are full participants in research projects that concern them, share an understanding of the aims and methods of the research, and share the results of this work. At every stage, research with and about Indigenous peoples must be founded on a process of meaningful engagement and reciprocity between the researcher and Indigenous people. It should also be recognised that there is no sharp distinction between researchers and Indigenous people. Indigenous people are also researchers, and all participants must be regarded as equal partners in a research engagement. (2012, 3)

There are also now a number of locally generated documents and guidelines we can access when we are considering research in Indigenous domains: some of which have been developed in recent years by Indigenous

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representative bodies, as well as local Traditional Owner groups whose rights and interests have been recognised through Native Title determinations. The Kimberley Land Council in northern Western Australia, for example, has the following: Research must observe the following aims: • Respect Kimberley Aboriginal peoples’ values and customary obligations; • Respect Kimberley Aboriginal peoples’ right to self determination; • Acknowledge Kimberley Aboriginal peoples’ rights to natural and cultural resources; • Recognise the rights of Kimberley Aboriginal people to their Aboriginal cultural and intellectual property; and • Ensure that Kimberley Aboriginal people benefit from research conducted on their land and in their communities. (Kimberley Land Council 2019)

Another important point of reference to guide research practice is the “FPIC” (“free, prior and informed consent”) principle in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 10 states: Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. (emphasis added)

FPIC has been employed across a range of issues by Indigenous peoples globally, for example an alliance of Forrest Peoples describes FPIC as [t]he principle that a community has the right to give or withhold its consent to proposed projects that may affect the lands they customarily own, occupy or otherwise use. (Forest Peoples Programme 2018)

FPIC offers criminological research a simple set of guidelines: research with the Indigenous domain must be based on agreement, and the consent of the groups effected. The Kimberley Land Council offers this advice to researchers wanting to establish a research agreement.

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The researcher should clearly define and explain the purpose and nature of the study and the research aims, methods and outcomes. The researcher should also explain the methods of collecting information including how and where the information is to be kept. It is important that the Aboriginal community have input into the design and methodology of the research project and control the research process. If necessary, the researcher may be required to modify the research proposal following discussions with the community. (Kimberley Land Council 2011, 2)

Practices of Centring Indigenous Perspectives By centring Indigenous perspectives, we further Indigenous resistance to the normalising and assimilating techniques of the colonial project over the Indigenous domain. We endeavour to decolonise research by mobilising Indigenous cultural resilience in research in order to unsettle the homogenising role of Western-centric and state-centric approaches to Indigenous societies. The decolonisation of criminological research requires not simply departing from orthodox ways of conducting research and theorising criminalisation, including by highlighting systemic racism and White colonial privilege, but also bridging the gap with Indigenous ways of learning and researching. Walter (2016a, 100–101) points to the key tenets of Indigenous methodologies and ethics, which are transgressed by Western criminology. These are: “reciprocity, respect, equality, responsibility, survival and protection” and “spirit and integrity”. The core ideas are that knowledge created should be useful for Indigenous people and the furtherance of their community-­owned safety strategies. This requires engaging Indigenous people in the research design and being accountable to Indigenous communities. It requires strengths-based representations of Indigenous cultures, knowledges and connections to Country; and peoples, families, organisations, communities and nations. It recognises the value of Indigenous sovereignty and the right to assert and enjoy cultural distinctiveness (Walter 2016a, 101). This includes rights to cultural wellbeing, connections to Country and the practice of Indigenous laws, free from the Western gaze.

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Finally, in this chapter we will return to our earlier critique of the routine work of surveys and its harmful ramifications for Indigenous participants and communities when undertaken in isolation (see Sherwood 2010). Our work with Juanita Sherwood and Tangentyere Council in Alice Springs, central Australia demonstrates that surveys can also be decolonised. Through collaborative practices with Indigenous organisations and Indigenous communities (namely Alice Springs Town Camps), our research on Aboriginal Community Patrols was centred on the objectives and needs of Tangentyere Council—an Aboriginal-owned and run service provider that operates patrols to ensure the safety of Aboriginal people in Alice Springs, especially on Aboriginal Town Camps. We discerned from several meetings that the priorities of Tangentyere Council for this research included: enhancing the patrol service it provides to Town Campers; improving the way in which Tangentyere patrols operate internally and relate with external services to provide a holistic response to the needs of Town Campers; and strengthening relationships between Tangentyere and Town Camps through listening to what Town Campers needs were from Night Patrols. Tangentyere also wanted to tell stories about its service and use those stories for advocating for its Aboriginal-­ controlled services that it has provided since the 1970s (see Anthony and Sherwood 2018; Sherwood and Anthony 2020). In order to acquire knowledge that would address these objectives, our research project involved the recruitment of researchers in Tangentyere Council (who are part of a central Australian Aboriginal research hub that Juanita Sherwood helped establish). We collaborated with the Tangentyere researchers to devise the questions in the surveys, which were formulated based on ongoing discussions with Town Campers and the lived experience of researchers who lived on Town Camps. The surveys were then conducted with Town Campers in-language (which is often not in English but a multitude of different Aboriginal languages) and on-place. We also held focus groups with the patrollers themselves, government agencies, health services and other arms of Tangentyere Council whose work dovetails the patrol work. We worked with Tangentyere researchers to analyse the results and plan dissemination, which encompassed Tangentyere, Town Campers, governments, researches and other Aboriginal patrols across the Asia Pacific.

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Our approach was strengths-based, meaning that we assumed the importance of Aboriginal patrols rather than measuring their success according to correlations with crime statistics, and thus rendering their existence contingent on Western criminological measures. Our concern was not to reinforce criminal justice stereotypes about Aboriginal people and the risks they pose, but to produce an inquiry that was directed to Aboriginal well-being and injury prevention. In this way, our research was compatible with the aspirations of Tangentyere Council and its Aboriginal patrols and meaningful for Town Campers. At the same time, it challenged deficit assumptions about Aboriginal people and organisations that pervade Western methodologies of the Global North.

References Anthony T (2013) Indigenous People, Crime and Punishment. Oxon: Routledge. Anthony T and Longman C (2017) “Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds”. International Journal for Crime, Justice and Social Democracy 6(3): 25–46. Anthony T, Sentance G and Bartels L (2020) “Transcending Colonial Legacies: From Criminal Justice to Indigenous Women’s Healing”. In L George, A N Norris, A Deckert and J Tauri (eds) Neo-colonial Criminal Justice: The Mass Imprisonment of Indigenous Women. Oxon: Palgrave Macmillan (forthcoming). Anthony T and Sherwood J (2018) “Post-disciplinary Responses to Positivism’s Punitiveness”. Journal of Global Indigeneity 3(1): 1–33. https://ro.uow.edu. au/cgi/viewcontent.cgi?article=1046&context=jgi Archibald Q’um Q’um Xiiem J, Lee-Morgan J and de Santolo J (2019) Decolonizing Research: Indigenous Story Storywork as Methodology. London: Zed Books. Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) (2012) Guidelines for Ethical Research in Australian Indigenous Studies. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies. Bhatia A (2012) “The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World”. Oregon Review of International Law 14(1): 131–176. Blagg H and Anthony T (2014) “If Those Old Women Catch You, You’re Going to Cop It: Night Patrols, Indigenous Women, and Place Based Sovereignty in

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Outback Australia”. African Journal Of Criminology And Justice Studies 8(1): 103–124. Blagg H, Morgan N, Cunneen C and Ferrante A (2005) Systemic Racism as a Factor in the Over-representation of Aboriginal People in the Criminal Justice System. Report to the Equal Opportunity Commission and Aboriginal Justice Forum, Melbourne. Blagg H, Williams E, Cummings E, Hovane V, Torres M and Woodley K (2018) Innovative Models in Addressing Violence Against Indigenous Women: Final Report. ANROWS Horizons, 01/2018. Sydney: Australia’s National Research Organisation for Women’s Safety Limited. Bond C (2016) “The Abuse of Aboriginal Women Via Racialized and Gendered Discourses”. Black Nations Rising 4: 8–9. Comaroff J and Comaroff J L (2012b) “Theory from the South: Or, How Euro-­ America is Evolving Toward Africa”. Anthropological Forum 22(2): 113–131. Connell R (2007) Southern Theory: The Global Dynamics of Knowledge in the Social Science. Sydney: Allen & Unwin. Derrida J (1978) Writing and Difference. Chicago: University of Chicago Press. Ermine W, Sinclair R, Browne M and Indigenous People’s Health Research Centre (2005) Kwayask itôtamowin: Indigenous Research Ethics. Report of the Indigenous Peoples’ Health Research Centre to the Institute of Aboriginal Peoples’ Health and the Canadian Institutes of Health Research, March. Fitzgerald J (2008) “Does Circle Sentencing Reduce Aboriginal Offending?” Crime and Justice Bulletin: Contemporary Issues in Crime and Justice 115: 1–12. Forest Peoples Programme (2018) “Free Prior and Informed Consent”. https:// www.forestpeoples.org/en/guiding-principles/342 Forster D, Williams R, Campbell D, Davis V and Pepperill L (2006) “‘Researching Ourselves Back to Life’: New Ways of Conducting Aboriginal Alcohol Research”. Drug and Alcohol Review 25: 213–217. Gerlach A (2018) “Thinking and Researching Relationally: Enacting Decolonizing Methodologies with an Indigenous Early Childhood Program in Canada”. International Journal of Qualitative Methods 17: 1–8. Gray T, Burgess S and Hinton M (2008) “Indigenous Australians in Sentencing”. In E Johnston, M Hinton and D Rigney (eds) Indigenous Australians and the Law, 2nd ed. New York: Routledge-Cavendish, 113–130. Grosfoguel R (2011) “Decolonizing Post-Colonial Studies and Paradigms of Political-Economy: Transmodernity, Decolonial Thinking, and Global Coloniality”. Transmodernity: Journal of Peripheral Cultural Production of the Luso-Hispanic World 1(1): 1–36.

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Kimberley Land Council (2011) “Research Protocol”. https://static1.squarespace. com/static/59fecece017db2ab70aa1874/t/5ab0ab1d575d1f54902b6868/ 1521527582702/klc-research-protocol%282%29.pdf ——— (2019) “Research Facilitation”. https://www.klc.org.au/research-facilitation Klein E, Jones M and Cubillo E (2016) “Have Aboriginal and Torres Strait Islander Legal Services Failed? A Response to Weatherburn”. Australian Review of Public Affairs 14(1): 1–24. Kwaymullina A (2005) “Seeing the Light: Aboriginal Law, Learning and Sustainable Living in Country”. Indigenous Law Bulletin 6(11): 12–15. Maldonado-Torres N (2011) “Thinking Through the Decolonial Turn: Post-­ continental Interventions in Theory, Philosophy, and Critique—An Introduction”. Transmodernity: Journal of Peripheral Cultural Production of the Luso-Hispanic World 1(2): 1–15. Marchetti E (2017) “Nothing Works? A Meta-Review of Indigenous Sentencing Court Evaluations”. Current Issues in Criminal Justice 28(3): 257–276. Paradies Y (2018) “Whither Standpoint Theory in a Post-Truth World?” Cosmopolitan Civil Societies: An Interdisciplinary Journal 10(2): 111–120. Royal Commission into the Protection and Detention of Children in the Northern Territory (2017) Final Report. Vol. 1. Canberra: Australian Government Publishing Service. Said E (1980) “Islam Through Western Eyes”. Nation, 26 April: 488–492. https://www.thenation.com/article/islam-through-western-eyes/ ——— (1993) Culture and Imperialism. London: Vintage. Shaw W S (2006) “Decolonizing Geographies of Whiteness”. Antipode 38(4): 851–869. Sherwood J (2010) “Do No Harm: Decolonising Aboriginal Health Research”. PhD Thesis, University of New South Wales. Sherwood J and Anthony T (2020) “Indigenous Ethics: It’s Just Good Manners”. In L George, J Tauri and L T A T MacDonald (eds) Indigenous Research Ethics: Claiming Research Sovereignty Beyond Deficit and the Colonial Legacy. Bingley, West Yorkshire: Emerald Publishing (forthcoming). Sherwood J, Lighton S, Dundas K, French T, Link-Gordon D, Smith K and Anthony T (2015) “Who are the Experts Here? Recognition of Aboriginal Women and Community Workers in Research and Beyond”. AlterNative 11(2): 177–190. Smith L T (1999) Decolonizing Methodologies: Research and Indigenous Peoples. London: Zed Books. Tauri J (2016a) “The State, the Academy and Indigenous Justice: A Counter-­ Colonial Critique”. PhD Thesis, University of Wollongong.

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——— (2018) “The Master’s Tools Will Never Dismantle the Master’s House: An Indigenous Critique of Criminology”. Journal of Global Indigeneity 3(1). http://ro.uow.edu.au/jgi/vol3/iss1/6. Walter M (2016a) “Indigenous Peoples, Research and Ethics”. In M Adorjan and R Ricciardelli (eds) Engaging with Ethics in International Criminological Research. Oxon: Routledge, 87–105. ——— (2016b) “Data Politics and Indigenous Representation in Australian Statistics”. In T Kukutai and J Taylor (eds) Indigenous Data Sovereignty: Towards and Agenda. Canberra: ANU Press, 79–98. Weatherburn D (2014) Arresting Incarceration: Pathways out of Indigenous Imprisonment. Canberra: Australian Studies Press. Whittaker A (2018) “‘Dragged Like a Dead Kangaroo’: Why Language Matters for Deaths in Custody”. The Guardian (Australian edition), 8 September. https://www.theguardian.com/commentisfree/2018/sep/07/draggedlike-a-deadkangaroo-why-language-matters-for-deaths-in-custody

Legal Materials R v Fernando (1992) 76 A Crim R 58.

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5 Borders Are Strange Places: Borders of the State to Boundaries of the Prison

Our observations of Western criminology’s universal methodology— which applies the same methodology to Duluth (USA) as it does to Tenant Creek (Australia)—resonates more broadly with how the Global North colonised Indigenous people. In a public lecture, Yawuru man Mick Dodson (2010) identified, “Colonisers didn’t have much imagination. They did the same thing everywhere…” Dodson was referring to the mass exportation of colonial ideas and policies. In the British settler colonies of Australia, Aotearoa/New Zealand, Canada and the United States, parliamentary committees in London set down blue prints for the treatment of “Aborigines” across its Empire. Indigenous people and places were carved up by the borders of strangers who did not know or inhabit their Country. These borders had no regard to songlines, trading routes, ceremonial sites, language groups and Indigenous connections to Country. British parliaments sanctioned such borders across vastly different Indigenous territories with the effect of deeply fracturing Indigenous societies. Glen Coulthard (2014a, 11–12) explains the “territorialism” of colonialism as geared towards the “violent dispossession of place-based non-state modes of self-sufficient Indigenous economic, political and social activity”. © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_5

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Within colonial borders, a process of “internal colonialism” took hold over Indigenous people (see Beckett 1977; Mullins 1997). This process involved the segregation and confinement of Indigenous people and the exploitation of Indigenous labour in indentured relations outside of the “free” labour market. The creation of internal borders—marked by the key sites of the mission, the cattle station, the pearling industry (in the Torres Strait), the government settlement and, ultimately, the penal prison—was crucial for controlling and profiting from Indigenous populations. Segregation and confinement dovetailed the forced displacement of Indigenous people from their land, the use of violence and the removal of Indigenous children from their families, which were all constituent of the internal colonial project, bent on the “elimination” of Indigenous cultures and peoples (Wolfe 2006). With this in mind, Maggie Walter (2016, 103) derides Western Criminology for its ignorance of histories of colonialism when it seeks to blame Indigenous people for their disproportionately high levels of imprisonment across Australia, Aotearoa/New Zealand, Canada and the United States. She says that attributing Indigenous over-imprisonment to Indigenous people across settler colonies leads to the “ludicrous” conclusion that “the British were just unlucky enough to colonize four discrete geographical locations where the Indigenous populations were naturally criminally inclined” (2016, 103). Walter, instead, implores a consideration of the coloniser’s power relationship with Indigenous people as an analytical frame. In this chapter, we explore the histories of colonial practices and policies that sought to dispossess, assimilate, exploit and segregate Indigenous people in the process of imposing colonial borders and sovereign jurisdictions (see Ford 2010). These histories are living and breathing; they continue “to facilitate the dispossession of Indigenous peoples of their lands and self-determining authority” and reinforce colonial state settlement and capitalist development (Coulthard 2014a, 6–7). We are concerned with how these histories surface in the contemporary imprisonment of Indigenous people. In doing so, we challenge the liminal and spatial void in which Western Criminology operates to exclude history and place.

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 istories of Massacres and Massacred H Histories Stories of massacres punctuate histories of Indigenous experiences of colonisation. The scars run deep and centuries-old wounds remain open. Martial law was declared in various places in Australia, especially where Aboriginal people resisted colonisation, including by refusing to leave their home Country. Surrender and submission were the only option for Aboriginal survival according to the colonisers. In 1816, New South Wales Governor Lachlan Macquarie, colonial administrator and British Army officer, ordered the military to march into the Interior and remote parts of the Colony, for the purpose of Punishing the Hostile Natives, by clearing the Country of them entirely, and driving them across the mountains. … In the event of the Natives making the smallest show of resistance—or refusing to surrender when called upon so to do—the officers Commanding the Military Parties have been authorized to fire on them to compel them to surrender; hanging up on Trees the Bodies of such Natives as may be killed on such occasions, in order to strike the greater terror into the Survivors. (Macquarie 1816)

This colonial mentality and politics precipitated massacres of Aboriginal people across Australia. In Bathurst, western New South Wales, for instance, martial law was declared in 1824, resulting in murder by firearms of 30 Wiradjuri people and the taking of Wiradjuri lands. Wiradjuri Elder Dinawan Dyirribang recently commented that he acutely felt the pain of what he and generations before him had lost: “I carry the scars of what happened 193 years ago” (quoted in Feng and Pearce 2017). Into the twentieth century, massacres were continuing in central Australia. Warlpiri, Anmatyerre and Kaytetye people were killed in the 1928 Coniston Massacre as part of a punitive raid. Locals recorded that 170 of their people were massacred over three months, and no charges were laid against the settler perpetrators led by Police Constable George Murray (Allam 2018).

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These were the crimes of the state and settlers that remain on the periphery of criminological thought. Yet Aboriginal people regard the violence of this past as intimately connected to the violence of today. Central Land Council Chairman Francis Tjupurrurla Kelly asserts that the state repeats its victimisation of Aboriginal people and children today in the criminal justice system: “Our people are still rotting in prison, dying in police custody and our kids are brutalized” (quoted in Allam 2018). These are lives taken in another way but in the same name of settler state violence. As part of the process of rewriting the histories of denial and the truth telling of Indigenous people, academics in conjunction with Indigenous research institutes in Australia have begun to map the massacres of Aboriginal people. The emerging map (see Fig. 5.1) has begun to depict massacres on the eastern side of Australia, but will continue to map the many massacres across the remaining parts of Australia. Colonisers also rampaged Indigenous societies through disease and starvation (Kociumbas 1998). The introduction of small pox between 1789 and 1790 on Gadigal Country (now inner-city Sydney) has been characterised as an act of biological warfare (Warren 2014). Noel Butlin

Fig. 5.1  Colonial Frontier Massacre map 1788–1872 (Eastern Australia) (Centre for 21st Century Humanities 2019). (Note: this map is still being completed. This is the current version as of 21 November 2019)

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in his book Our Original Aggression: Aboriginal populations of Southeastern Australia 1788–1850 has speculated that in the four decades following British invasion, the Aboriginal population was decimated by between 60 and 90% (cited in Maynard 2015). Indigenous Australians responded to colonial violence with strategic resistance, but the sheer speed and force of the occupation left little time for Aboriginal nations “to form alliances” and present a united front (Kociumbas 2004, 89). The strength of Aboriginal responses to colonial violence is nonetheless a remarkable feat and display of strength, including the employment of “superior knowledge of the country to delay invasion” and tactical attacks of “bullock-­ drays, isolated stockmen, and the flocks and herds” (Kociumbas 2004, 89). Yet in Australia there is a raging debate, including at a parliamentary level, that stems from denial of the harm inflicted on Aboriginal and Torres Strait Islander people in the process of colonisation and the whiting out of Aboriginal and Torres Strait Islander histories. In 1968, the anthropologist W.H. Stanner spoke of the “great Australian silence” in relation to Indigenous people (Stanner 1968). In 2014, it was still possible for an Australian Prime Minister, Tony Abbott, to speak of Australia as an “unsettled, or scarcely settled, Great South Land”, rather than a country with an uninterrupted occupation for 60,000 years (quoted in Hutchens 2014). This was the culmination of the “history wars” in Australia (MacIntyre and Clark 2003) in which the Federal Government had used its parliamentary authority to openly attack Indigenous Knowledges and uphold the righteousness of colonisation since the mid-­1990s. Those who speak of colonial massacres, genocide and violence remain accused of wearing a “black arm band” and having a “bleeding heart”. Indigenous peoples have struggled to gain purchase on the historical narrative structure. They are positioned as the ghosts of Europe’s past, and the detritus from the eruption of modernity, rather than the resilient survivors of invasion and agents in ongoing colonial struggles. The tendency is to disavow historical Indigenous claims to land to imply peaceful colonial settlement. It silences Indigenous suffering while upholding occupier’s possession of land as a lawful right. In Australia, sites such as the Port Arthur convict prisons (for non-Aboriginal people) enjoy World Heritage status, whereas Aboriginal massacre sites have been deliberately obliterated in an act of national forgetting.

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Rottnest Island off the coast of Perth in Western Australia is a case in point of white historical (re)imagining. It is publicised as a holiday destination “blessed with a casual atmosphere, picturesque scenery, dazzling marine life and some of the world’s finest beaches and pristine bays” (Destination Perth 2019). Nowhere does it mention that it was the site of a brutal regime for Aboriginal people. It was a penal establishment specifically for Aboriginal people, many of whom were from the distant Kimberley region in the state’s far north, transported several thousand kilometres from home for defending their lands against white invasion. Between 1838 and 1931 some 369 Aboriginal prisoners died on Rottnest Island (Green 1998). There were, until recently, no monuments referencing Rottnest’s violent, penal past; instead, the cells that warehoused Indigenous suffering have been knocked together to form bijou studios for guests at what is now the Rottnest Lodge.

Dispersed White Power and Violence Gazing back at colonial power, Indigenous peoples saw a dense, connected and relatively integrated system of authority based on whiteness, incorporating everyone from the policeman to the local shopkeeper. A defining feature of the settler colonial gaze is the extent to which it streamed not only, a la Foucault, from obvious sources of medical, judicial and correctional authority, but rippled outwards so that every white man was a policeman, gaoler, protector, supervisor and chastiser (Buchanan 1933, 117). Extraordinary levels of sovereign powers vis-à-vis the native devolved to lower level functionaries and relatively minor members of “civil society”—based on privileges of whiteness. Lay Justices of Peace (the local Chamber of Commerce enrobed) in rural Australia, literally held the power of life or death when serving on Western Australia’s Courts of Native Affairs (Auty 2000, 2005). The fact that death sentences on Indigenous offenders—by the local shopkeeper, the pastoralist or publican—were always commuted by the Western Australian Supreme Court matters little: it was designed, as they say, to send a message. Bauman’s (1991) stress on centralisation, impersonality, detachment and distance as the modus operandi for modern genocide does not ­necessarily fit

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with the intensely personal and intimate frontier genocide, such as the “frontier” massacres of Indigenous men, women and children in North America (Sand Creek, Wounded Knee), Australia (Mistake Creek, Forrest River, Coniston) and countless sites in South America (Galeano 1997). In settler colonies, the army, police or prison officer did not and does not hold the exclusive monopoly on violence against Indigenous people. Frontiers are often characterised by the lawless, yet sanctioned, violence of settlers, agriculturalists, graziers, sealers and missionaries (see Reece 1974; Rae-Ellis 1981; Berndt and Berndt 1954, 14–25). The dispersement of white violence was witnessed in 2016 when a white civilian miner ran down and killed a 14-year-old Kalgoorlie boy Elijah Doughty following a spate of white vigilantism that played out on social media (Cunneen and Russell 2017). The crime and its coverup was facilitated but not committed by the police. A relevant criminology of the Global South would, be aware of the multiplicitous sites of violence and genocide.

 olonial Hegemony-Building and Its Violent C Underbelly Violent domination is only one weapon in the armoury for enforcing colonial rule. Over time, hegemony-building strategies, designed to win or shape legitimacy and consent for colonial rule, have become powerful weapons in colonial nation building. Gramsci (1999, 526–527) describes “political and cultural hegemony” as the invisible and pervasive power that shapes systems of universal domination and repression. These cultural systems of meanings, values and expectations in the lived world are not passive, but according to cultural theorist Raymond Williams (1977, 110–112), need to be continually “renewed, recreated, defended, and modified” in the face of resistance and challenges. The hegemonic practices and ideologies of the colonised can never settle so long as Indigenous alterity exists, and thus require constant renewal through the ongoing proliferation of its racist ideologies. Hegemony is cemented in the colonies inter alia through the spread of Christianity and civilisation ideologies in schooling, instruction and language (Krishna 2001, 415; Welch 1988), the universalisation of the rule

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of law (see Chakrabarty 2002, on this Eurocentric exportation to the colonies), and even “benevolent” state gestures towards Indigenous recognition, accommodation and reconciliation that produce hegemonic norms to regulate colonial dispossession (Coulthard 2014a, 15; Alfred and Corntassel 2005). In Canada, the 2008–2015 Truth and Reconciliation Commission gave rise to new debates and reflections about impacts of the Canadian Indian Residential School and related colonial injustices. However, it is also regarded by First Nations scholars and activists as a tool of legitimation that enables the state to continue to deprive First Nations of their land (Alfred 2009, Chrisjohn and Wasacase 2009; Corntassel and Holder 2008; see also Alfred 2017; Coulthard 2018). In settler colonies, the legal hegemony has been maintained with the fiction of the rule of law: that the universal (British) legal system bestows legal protections on everyone equally. In effect it subjugated Indigenous people to the colonial jurisdiction, although without its attendant rights and protections. This British system was imposed on all peoples in Canada, Aotearoa/New Zealand, United States and Australia, and its legacy lives and breathes today. It is bandied around by politicians to inject virtue into their mission and denigrate calls for systemic change. Lawyers invoke legal procedures, doctrines and symbols to provide a ceremonious element to their authority. The rule of law fiction nullifies Indigenous claims to a separate legality and conceals the discriminatory and oppressive character of laws upheld by the rule of law. For Moreton-Robinson (2003, 37, 2004), colonial legal knowledges maintain “patriarchal white sovereignty” and “white possession”. They serve as a form of epistemic violence by undermining Indigenous jurisprudence that locates land as the “source of law” in connection with other aspects of life (Black 2011). Imposed laws have denied Indigenous sovereignty and land claims (see e.g. in New Zealand, Queen v Symonds (1847) NZPCC 388, 392; Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC); Hackshaw 1989, 92, 111), while assuring the imprisonment and brutality of Indigenous lives. McBride (2016) identifies how the British “rule of law” as “a mode of practice” legitimated and entrenched colonial power and abuses of power. In Australia, one of most judicially revered legal doctrines was “terra nullius” (land belonging to no one). This legal falsehood enabled exclusive

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British Crown title in the land (Attorney-General v Brown (1847) 1 Legge 312) and, in turn, acts of violence against Indigenous people who were treated as trespassers on their land. When the Australian High Court displaced this legal falsehood in Mabo (1992, 39), it nonetheless upheld the Anglo-Australian legal “skeleton” that provides “internal consistency” and excludes Indigenous pluralist claims to sovereignty. The rule of law has also been grounds for denying Indigenous people the right to practise their own criminal laws and punishment systems. The case of R v Murrell (1836) set down this colonial legal position in New South Wales, Australia. It involved the murder trial of Jack Congo Murrell who sought to be subject to his own Aboriginal laws rather than the laws of the colony. Murrell reasoned that the land was occupied by his own people and regulated by Indigenous Laws before colonisation, and this land was neither conquered, ceded nor settled. Chief Justice Forbes rejected this submission, declaring that there was no pre-existing title in land, system of governance or laws operating at the time of colonisation. This upheld a fantasy that New South Wales was unappropriated before colonisation and the Crown had first title and exclusive sovereignty. It sustains the “fanatical dream” of the “monist character” of the British normative order—by dismissing the alternative Indigenous orders as little more than superstition (Motha 2005, 125). More than 200 years later, the High Court of Australia in Coe v The Commonwealth ((1993) 118 ALR 193) and Walker v New South Wales ((1994) 182 CLR 45) endorsed these myths and denied sovereignty to the Wiradjuri and Noonuccal people respectively. The High Court deemed that Wiradjuri people “have no legislative, executive or judicial organs by which sovereignty might be exercised” (Coe v The Commonwealth (1993) 118 ALR 193, 199). Meaning that the Wiradjuri governance and law systems would not be recognised because they did not mirror the British system. The myth of legal universality was reinforced in Walker v New South Wales ((1994) 182 CLR 45, 48), another case in which the defendant sought to be tried by his Aboriginal laws. The High Court held that Indigenous laws were extinguished by virtue of the enactment of “criminal statutes of general application” (1994, 49). It maintained that Aboriginal people were not entitled to “any rights and interests other than those created or recognised by the laws of the Commonwealth, the

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State of New South Wales and the common law” (1994, 49). Similarly in Aotearoa/New Zealand, in R v Mason ([2012] NZHC 1849), the High Court refused to allow a Māori man, accused of murder, to be dealt with in accordance with tikanga Māori (a customary system that deals with alleged breaches of societal norms including “serious crime”) in his trial and sentencing because there is “one law for all in New Zealand” (2012, 8; upheld in Mason v R [2013] NZCA 310). Desmond Manderson (2001, 31) asserts that Indigenous legal challenges to sovereignty are consistently rejected because they are “impossible to domesticate” and antithetical to the Western notion of universalism. However, it is premature to speak of hegemony-building as the only modus operandi for colonial governance. Ranajit Guha (1997) contests the role of persuasive strategies of hegemony in colonial regimes where coercive and discriminatory practices prevail, describing the coloniser’s rule as “dominance without hegemony”. Institutional violence against the colonised has not ceased (see Chap. 7). Hegemony-building serves to normalise the violence and minimise its use as a requisite for power and control. It also legitimates the state on the international stage. Siba N’Zatioula Grovogui (1996, 44) asserts that the Western hegemony in the colonies diminishes the Indigenous peoples’ juridical capacity and enables Western laws to undermine the colonised’s “subjectivity and sovereignty in the international order”. The violent underbelly of hegemony-building emanates when the rule of law allows deaths of Indigenous people, whether at the hands of the state or civilians, to go unchallenged. Just as there was a lack of justice for Aboriginal people who were massacred on the frontiers, civilians (including in the case of Elijah Doughty mentioned above) can kill with relative impunity (Tranter and Anthony 2019). The denial of procedural fairness, trials by all-white juries and systemic racism have allowed white people who take Indigenous lives to walk free, while Indigenous people are locked up for minor summary offences or for simply being Indigenous (Auty 2005, 128, 148). The recent case of Gene Gibson, a young Aboriginal man from the Western Desert community of Kiwirrkurra who made a guilty plea to manslaughter without adequate English proficiency or the assistance of interpreters, highlights the ongoing failure of the criminal justice system to provide access to justice for Aboriginal people (Tulich et al. 2017).

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Prison Legacies Beyond the Prison In Western Criminology there is a tendency to begin with the criminal justice system in a trail of inquiry into Indigenous incarceration. This point-in-time approach conceals the multiple institutional interventions that have plagued Indigenous lives since the genesis of colonisation, or the lateral interventions (state child protection systems, mental health institutions, racist schooling) that currently inhibit Indigenous lives and wellbeing. In British settler colonies, incarceration is not a sui generis form of control associated with the modern penitentiary. Rather, segregation and confinement are the coloniser’s default mechanisms for seeking to control Indigenous bodies and souls, whether that be on missions, government settlements, reserves, cattle stations, homesteads or orphanages and residential homes for Indigenous children. A historical analysis of the discriminatory segregation of Indigenous people sheds light on contemporary institutional bias, including in the criminal justice system, but also in the child welfare, psychiatric, health and educational systems (see Trocme et  al. 2004; Sherwood 2010; Franklin and White 1991; Dudgeon and Walker 2015; Neeganagwedgin 2013) and the labour market (Huggins 1987/1988; Anthony 2007). It reveals that facially neutral legal processes are steeped in bias due to entrenched colonial knowledges that inferiorise Indigenous people. Even when racism is not evident in Western decision-making, the practices informed by underlying racist assumptions contribute to the vast over-­ representation of Indigenous adults and children in these state institutional settings, including the penal hyperincarceration (see Anthony and Blagg 2019; Blagg et al. 2005). Institutionalisation has denied Indigenous peoples their cultures, ceremonies, languages, familial relationships and land, and has been as ­devastating for Indigenous societies as frontier violence (Sherwood 2013). As we discuss below, there were four key phases in the history of Aboriginal policies that were collectively predicated on colonial control. The Aboriginal policy phases are interconnected and overlapping, although in Australia and Canada they can be more clearly demarcated: (1) segregation on missions and ration depots in the early colonial period (civilising carceralism), (2) protectionism in the nineteenth and early twentieth centuries (protective

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carceralism), (3) assimilation in the early to mid-­twentieth century (welfare carceralism), and (4) citizenship and imprisonment in the late twentieth century (penal carceralism) (see Anthony 2019). This history has not ended. As witnessed in Australia over the past two decades, we have entered a new phase where Indigenous people are subject to renewed discriminatory policies that remove basic rights, close down remote Indigenous homelands and pave the way for the exploration and exploitation of land for mining (see Chap. 7). Such policies also create epistemic violence by fracturing Indigenous cultures and Knowledges and reasserting Western worldviews (e.g. in relation to land extraction and commodification). Prior to this shift, in the late 1980s and early 1990s, the Australian Government gestured to the idea of Indigenous self-determination by resourcing Indigenous councils, organisations and initiatives to provide programs in their communities and establishing the Aboriginal and Torres Strait Islander Commission (ATSIC)—an Indigenous national representative body with wide sweeping powers over service delivery. This embryonic self-determination policy was short-lived with its abrupt disbandment in favour of “mainstream” service delivery and “mainstream” cultural values. Genuflection to the mainstream is also evident in the Canadian Harper Government’s denunciation of the unique cultural claims of Aboriginal people (Snow and Moffitt 2012). We noted earlier in this book that Canada’s Truth and Reconciliation Commission and treaty-making processes have provided some avenues for redress, but they haven’t stemmed the tide of Indigenous incarceration or state removals of Indigenous children from their families. Contemporary ideologies of integration, therefore, are underpinned by cultural biases that assure the ongoing institutionalisation of Indigenous peoples. Also of critical concern in Australia, the United States and Canada, as well as for other Indigenous people internationally, is the threat posed by mineral extraction and transportation and the state’s complicity in this and other forms of destruction to Indigenous peoples’ homelands. This was brought into sharp relief with Indigenous struggles against oil and gas pipelines, including the Dakota Access Pipeline across the United States, the Trans Mountain Pipeline and the Northern Gateway Pipeline—both from Alberta to British Columbia, Canada. In Australia, the open cut and underground Adani mines in north Queensland pose significant risks to the cultural heritage of the Wangan and Jagalingou

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people through the irreversible disrepair of their ancestral lands and waters and their totemic plants and animals, including endangered species, and spring systems. The Wangan and Jagalingou Family Council (n.d.) describe the mine as tearing “the heart out of the land”. All these processes are part of the imposition of a colonial prison. Indigenous people whether in the mission, government camp, pastoral station or even on the urban street or living on Country cannot escape the chains of colonisation. Colonisation has dispossessed and discriminated against Indigenous people and destroyed their land with a suffocating intensity. It has sought to silence the songs and disable the dance of generations of Indigenous ancestors. But its lack of success in completing the colonial project assures its continued exploitation.

Early Prisons: Civilising Carceralism on Missions and Ration Depots Colonial carceralism emerged not with the penal penitentiary as the primary site of confinement but with civilising, protective and welfare carceral models. In the early attempts by settler colonists to transplant the Global North onto the Global South, by uprooting Indigenous occupants, Indigenous incarceration and sedentation was a key practice, alongside violence. Early prisons took the form of missions and reserves, which gave settler societies a particularly rich set of self-exculpatory and self-­ aggrandising narratives, including biblical-scale themes of redemption and renewal. Such narratives obscured the crimes of land theft and the necessary denial of Indigenous sovereign law. To maintain its self-projected image as a civilising nation and Empire, the British Parliament promoted ideas of civilisation and Christianity in its Select Committee on Aboriginal Tribes (1837). What the British Select Committee failed to see was that frontier violence was coupled with endeavours towards civilisation and Christianisation of Aboriginal people, which were just as malign as the physical violence. Nonetheless, the spread of missionaries marked the beginning of a new phase in the colonial project where murder and massacres were no longer the predominant

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modus operandi for the control of Aboriginal people, although nor was this entirely dispensed with either, with massacres continuing in Australia for almost 100 years after the Select Committee. Jessie Mitchell’s (2011) book, In Good Faith? Governing Indigenous Australia Through God, Charity and Empire, 1825–1855, traces the early wave of “Christian humanitarians” to the devastating losses at the hands of British colonists. Missionaries sought to “save” Aboriginal people by forcing them into one place where they could be taught the ways of “civilisation” through instruction and labour (2011, 100), which also had the effect from removing them from their land and curbing their resistance to colonial takeover. At the Hermannsburg Mission in Central Australia, missionary work prepared Aboriginal people for stock work in its cattle industry (Johannsen 1992, 33). Christian humanitarians and colonisers alike relied on the “colonial trope” that “Indigenous people were both greedy and lazy” and required cultural elimination (Mitchell 2011, 116). Farmer R. F. Graetz told the 1899 South Australian Select Committee on the Aborigines Bill: the missions will civilise Aborigines “before they can go to squatters” (Graetz 1899, 14). Missions were established in tandem with government reserves, camps and stations to confine and manage Indigenous people. They spread from the eastern parts of Australia, across the entire continent, including the Torres Strait (see AIATSIS 2017; Goodall 1996 and Fig. 5.2). They were run by white people, often Christian missionaries, and mostly included a school, clinic and ration depot. Anthony Martin Fernando, an early twentieth century Aboriginal political activist who campaigned in London, stated that missions were “another kind of state prison, and the murder houses of the Lords and Ladies of Australasia” (quoted in Browning 2010). Much later, criminologist Paul Wilson described in his book, Black Deaths, White Hands (1982, 39), pointed to the epistemic violence that missionaries inflicted on the Queensland “prison island” of Palm Island (Bwgcolman): Missionaries ‘prostituted’ Aboriginal spiritual and cultural values and in the words of the World council of Churches ‘took part in the destruction of Aboriginal culture and institutions’.

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Fig. 5.2  Map of missions, government stations and reserves 1883–1969 (AIATSIS 2018; Horton 1994)

In its concern to distance itself from the atrocities in the colonies and rein in the excesses of the maltreatment, the British built a model based on Christianity and state Protectors. The British House of Commons established a Parliamentary Select Committee on Aboriginal Tribes (British Settlements) in 1836–1837 to identify how the British Government could undertake its “great and important purpose in the government of the world” through imparting “civilization and humanity, peace and good government, and above all the knowledge of the true God, to the uttermost ends of the earth” (quoted in Eldridge 1996, 104).

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The Report of the British Parliamentary Select Committee (1837, x) was “published under the sanction” of the British and Foreign Aborigines Protection Society and in consultation with missionaries and colonial administrators. On the basis of evidence provided by the Protection Society, the Committee reported that the “degraded state of Aborigines” shows “the absolute necessity for adopting immediate measures for their protection and preservation” (1837, xi). The British sought to advance the civilising mission through “protecting” Aboriginal people in tandem with exploiting land and resources for the purpose of trade and commence (Armitage 1995, 5). Civilisation and commerce required the exploitation of Aboriginal labour, whether that be in industry, on missions and settlements or for white families. The impact of the report was to sedentise Aboriginal people on settlements, where they would be taught, consistent with Social Darwinist ideas, to live and work like the British in order to “improve” themselves (British Parliamentary Select Committee 1837, 127). Gestures to protectionism had already been afoot in the colonies, with centralised sites of British power catching on late in the day. The newly “independent” United States established the position of Indian agent (akin to an Aboriginal protector) in 1793 under the Second Trade and Intercourse Act. Indian agents resided “among the Indians” and removed them from their land, that was procured for settlement, and placed them on reserves to prepare them for domestic and agricultural work (Department of the Interior Census Office 1894, 62; Prucha 1984, 58, 61). Following the British Parliamentary Select Committee Report, the powers of Indian Agents extended to civilising and Christianising roles such as prohibiting liquor on reserves and schooling (Castile 1981, 67; Martin 2003, 41; Reyhner 2018, 62). This revealed the entrenched colonial legacy in the United States, well after Independence and into the early twentieth century when the position of Indian Agent was abolished. Indigenous confinement in Australia and Canada initially depended on the ration depot. Until the 1830s, New South Wales, South Australia and Western Australia supplied “government-sponsored ‘feasts’—accompanied by the provision of clothing, blankets and other goods” to pacify Aboriginal people and “communicate the government’s message of benevolent intentions” (Nettelbeck and Foster 2012, 26). In central

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Australian, ration depots drew in Aboriginal people who were deprived of their homelands and means of sustenance and seeking refuge from pastoralists who would “hunt down” Aboriginal people and dry up their water holes and food supplies (Rowse 1998). As ration provisions grew, depots became permanent settlements to keep Aboriginal people away from towns and as a feeder for cattle stations in need of cheap labour—both critical features of colonial governance in the Northern Territory (Turner-­ Walker 2010, 51). In Canada’s North West Territories “a system of ration distribution emerged” to provide agricultural education in the hope of assimilation (Nettelbeck and Foster 2012, 31). This furthered the Department of Indian Affairs’ objective of “Aboriginal confinement” (Satzewich 1996, 193). Segregation had another Social Darwinist pretense: that Aboriginal people’s long-term survival was in question and the most that could be done was to “smooth the dying pillow”. This implied that the loss of Indigenous lives, widespread disease and malnutrition was genetic rather than the result of colonial violence, plagues, displacement from Country and loss of food sources (Franklin and White 1991, 3; Sherwood 2013, 30). This idea continued to exist in the late nineteenth century when Queensland parliamentarian, Archibald Meston stated in 1897, “The least we can do is to make their time here, which will not be a very long time, as pleasant as possible, and their departure as gentle as circumstances will permit” (Queensland Parliament 1897). It would justify segregation and protectionist legislation (see below) and attempts to “breed out” Aboriginality, which was the explicit plan of Chief Protector of Aborigines in Western Australia (A.O.  Neville), Queensland (J.W. Bleakley) and the Northern Territory (Cecil Cook) (Human Rights and Equal Opportunity Commission (“HREOC”) 1997, 26; on Social Darwinism and racial extermination, see Hawkins 1997). Colonial strategies of Aboriginal containment on the frontier were constantly mediated by resistance. Counter-strategies included Aboriginal negotiation with officials and missionaries (Mitchell 2011), refusal to live on places of containment (missions, pastoral stations and camps), and attempts to escape, notwithstanding the threat of violent punishment (Huggins 1987/1988, 14). Aboriginal mothers who protected their children from being taken faced brutal police interventions where children

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could be thrown in the back of a pickup truck to be transported far away from home (Tranter 2003, 76–77; HREOC 1997, 123). The fact that settler violence did not quash Indigenous resistance and refusal is starkly evident in Canada where refusal by Aboriginal parents to give up their children, and the refusal of children to be proselytised, forced residential schools, that had operated from the 1830s, to close in 1996 (Petoukhov 2011, 10, 32; also see Haig-Brown 1988).

 boriginal Segregation in State Protectorates: A Protective Carceralism While missions and camps were a feature of the colonial practice of containment across the world, in the British Empire, the segregation of Aboriginal adults and children gained a legal status under the Aboriginal Protection Acts that would further circumscribe Aboriginal people’s movements and rights. The British Parliamentary Select Committee (1837) provided a blue print for protectionist legislation, by setting out the regime of protectorates and the duties of protectors of Aboriginal people. The protectors were intended to be “humane intermediaries” between the coloniser and the colonised, although its central role was enforcing the colonial hegemony (Lester and Dussart 2008, 208). Aboriginal people were designated institutional inmates and deprived of control over their affairs, including as they related to their lands, families, associations, culture, working conditions and income (Armitage 1995, 41–42). In Australia and Canada from around the late nineteenth century, and for a brief period in Aotearoa/New Zealand in the 1840s, legislation codified the office of Aboriginal Protector and a network of protectorates and broad-sweeping powers for Aboriginal protectors over the lives of Aboriginal people. In Australia, the passage of so-called Aboriginal Acts were the vehicle for protectionism,1 whereas in Canada it was amend These are also known as “Aboriginal Protection Acts” and include the Aborigines Protection Act 1886 (WA); Aboriginal Protection Act and Restriction of the Sale of Opium Act 1897 (Qld); Aborigines Protection Act 1909 (NSW); Aborigines Act 1911 (SA); Aboriginals Ordinance 1911 (NT); Aboriginals Ordinance 1918 (Cth). Aboriginal protectors policed every aspect of Indigenous peo1

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ments to the Indian Act (An Act respecting Indians). These discriminatory laws further restricted the civil rights of Aboriginal people who had been spared frontier fatalities. Although the post of Aboriginal Protector had been established following the Select Committee Report in Victoria, Tasmania, South Australia and New South Wales, the later  process of juridification, to use the words of Foucault (1978, 144), created a “regulatory and corrective mechanism”. It regulated the enforcement of sovereignty, displacement and disempowerment of Aboriginal people and instilled self-discipline through instruction, work and routine (Finnane and Paisley 2010, 142). The British Parliamentary Select Committee (1837, 126) described the “duties of Protector of Natives” in specific terms, while advocating for the broad discretion for missionaries to continue to instruct Aboriginal people and exploit their labour. Protectors’ duties encompassed: facilitating the education and employment of Aboriginal people (in conjunction with missionaries); informing the coroner when an Aboriginal person was “slain”; exercising the power of a magistrate to prosecute crimes against Aboriginal people; defending Aboriginal people accused of crimes; making suggestions to the local government for special laws to regulate Aboriginal people until their advanced “knowledge and civilization” supersedes this need; and reporting on the “duties of his office” to the British Kingdom via the local government (1837, 126–128). Aboriginal protectors held the keys to Aboriginal confinement and could declare “any mission station, reformatory, orphanage, school, home or other institution established by private contributions to be an aboriginal institution for the maintenance, custody, and care of aboriginal and half-caste children” (Northern Territory’s Aboriginals Ordinance 1918 s 13(1)). They were empowered to take Aboriginal children from their families, exercise guardianship powers and “bind by indenture” children to “any suitable trade, business, or employment whatsoever” (Ordinance for the Protection, Maintenance and Upbringing of Orphans and Other Destitute Children of the Aborigines 1844 (SA)). Across settler colonies, Indigenous ple’s lives, including their movement, marriages, associations, religion, employment, income, clothing, food, health care, alcohol and tobacco. Protectors were selected among pastoralists, police officers and missionaries and served as Aboriginal guardians, mediators and advocates.

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children were institutionalised.2 “Saving” Aboriginal children from their culture was a key trope of the protectionist and assimilationist eras (Khan 1993, 33) and informed their mass removal from families (HREOC 1997, 117–118). In Canada, the removal of First Nations children was pursued under the mantra “Kill the Indian in the Child” (Truth and Reconciliation Commission of Canada 2015, 130). State-sanctioned removal of Indigenous children outlasted official policies, with placement in boarding schools and residential institutions continuing well into the twentieth century with reference to “the best interests of the child”. Today Indigenous children are taken from their families in Australia, Canada and Aotearoa/ New Zealand at alarming rates (see Wahlquist 2018; Roy 2018), although now non-Aboriginal foster homes are the staple institutions. The Canadian brand of colonial protectionism operated through the Indian Act,3 which provided administrative powers to the Department of Indian Affairs and its “Indian agents” to manage Indigenous lives, lands and resources, including determining who was an “Indian”, enforcing industrial schooling for First Nations children, controlling movements and cultural/religious practices of First Nations and in the process promoting civilisation, Christianity and agriculture (Aboriginal Affairs and Northern Development Canada circa 2008, 7, 8). Dyck (1991) describes the “protective” role of Indian agents as part of the “coercive tutelage” of British and localised colonial powers. Indian agents assured the takeover of First Nations land and primitive accumulation along British agrarian lines. Protectionism was productive for the colonial project—not only epistemically (through securing the colonial hegemony and displacing Indigenous Knowledges), but also economically: through training as well as blatant exploitation. The Aboriginal Acts in Australia indentured Aboriginal labour for pastoral, pearling, agricultural and domestic employers. In the north Australian cattle industry, unpaid and highly skilled Aboriginal labour kept the large-scale industry profitable for over  Residential school policies for Indigenous peoples were not unique to the British colonies. In Scandinavia, across Norway, Finland and Sweden, Boarding Schools were introduced to assimilate Sami children from the late nineteenth century until the 1960s. 3  This Indian Act 1876 consolidated the laws governing First Nations. Inuit and Metis were not governed by the legislation. 2

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a century (1860s–1970s). Following violent dispossession of lands, Aboriginal people were forced to live on cattle stations where they would be made to maintain the upkeep of stations, muster cattle and serve the homestead (see Anthony 2004). They were treated as “bare life” (Agamben 1998)—subject to the whim of the pastoralist (and protector) who were prone to hang, torture and kill their Aboriginal workers for breaching the employment relationship (see Chap. 7). Under protectionism, the criminal justice system formally set aside special laws for Aboriginal people to permit exceptional punishment. The rule of law was suspended in the name of taming the native. Aboriginal people who defied protectionist provisions, such as speaking in language, practicing culture, marrying without permission or otherwise disobeying the protector’s orders, were harshly punished. The Summary Trial and Punishment of Native Offenders Ordinance 1849 (WA), the Capital Punishment Amendment Act 1871 (WA) and the Aboriginal Offenders Amendment Act 1892 (WA) provided public execution and corporal punishment, such as chaining, whipping and flogging, for Aboriginal people alone. The Breach of Contract Act 1842 (SA) and the Aboriginal Native Offenders Act 1849 (SA) criminalised Aboriginal workers who left their place of employment and allowed for whipping long after corporal punishment had ceased for all other people (Thorpe 1992, 90–91). Under the Northern Territory Aboriginals Ordinance (1918) s 6(1), the Chief Aboriginal Protector could indefinitely incarcerate an Aboriginal person who resisted authority. In Queensland, Murri people were sent to penal islands run by missionaries, such as Palm Island (Bwgcolman), for resisting protectionism. Aboriginal people describe Palm Island and similar places of protective carceralism as “refugee camps”, “detention centres” and “punishment reserves” (Glowczewski and Wotton 2008, 16, 24). However, the enforcement of protectionism was not always linear, with local administrators and squatters retreating to violence as the primary mode of colonial governance in Aotearoa/New Zealand. Its brief flirtation with official protectionist laws,4 from 1840 to 1846, was deemed inconsistent with colonial occupation (Wake 1962, 356). Unable to  A series of legislative ordinances and acts were intended to implement the New Zealand policy of protectionism, including the Native Trust Ordinance 1844 (NZ). 4

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quash ongoing Māori resistance to the dispossession of their land, the post of Chief Protector was dissolved following prevailing views by squatters and colonial administrators that its sympathetic function did not serve settler interests (Lester and Dussart 2008; Dorsett 2009, 190; Clarke 1846, 4–5). Following this period, New Zealand colonial governmentality was characterised by a mix of violent settler reprisals to Māori resistance and the formation of mission schools. The Education Ordinance of 1847 and the Native Schools Act 1848 supported the role of mission schools in imparting to Māori people, especially children, religious education, industrial training and instruction in the English language. From the 1860s, “Native” policy proceeded on the basis that the Māori societies would be dismantled and “the Natives” would come to identify “with ourselves, to become one people” (Butterworth and Young 1990, 38). In its various guises, protectionism juridified the state of exception for colonised people in which they were deemed outside of the rule of law (Agamben 1998). Paul Havemann (2005, 60) describes this historical exclusion of Indigenous peoples under protectionist statutes and practices in the following terms: In the colonies Indigenous people … have been the paradigm non-people, non-citizens, homines sacri. If not, at worst, exterminated with legal impunity, they have been excluded and condemned to placelessness in ‘zones of exception’ such as reserves, mission schools or camps and other forms of segregation under the regime of the sovereign’s draconian ‘protection’.

Assimilation Policies and Welfare Carceralism The wave of decolonisation, at least in a formal sense, that washed across the Global South in the mid-twentieth century following World War Two, had the effect of ameliorating the excesses of exceptionalist and discriminatory policy imposed on Indigenous people in the settler states. The shift in policy responded to growing resistance struggles from Indigenous and non-white people across the globe, including African Americans in the United States. Their calls were for civil rights, and a short time later for

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black power (which took on the character of “self-­determination” and sovereignty in Indigenous peoples’ struggles and demands). The state’s response had the effect of bringing Indigenous people within the ambit of universal policies and laws, although with highly subjective and disproportionately harmful impacts. In this context, the 1940s and 1950s witnessed the repeal of protectionist legislation in settler colonies, and in its wake the policy of “assimilation” took hold. Indigenous people became subject to universal laws, although with discriminatory outcomes, including in terms of family interventions and child removal, welfare and employment rights and access to health and education. In Canada, the Indian Act began to be sealed from 1946. Amendments were made in 1951 to limit some of the authority of the minister over the affairs of individual bands, although government powers remained over many facets of First Nations lives. First Nations children continued to be systemically removed from their families and placed in residential schools and with foster carers, including as part of the Sixties Scoop (Sinclair 2007). In Australia, Aboriginal people mostly remained on government settlements, in orphanages or employed as indentured labour throughout the 1950s and 1960s. Indigenous people were conceived as putative citizens, although in a holding pattern—awaiting their full integration—while they were designated “wards of the state” under welfare legislation. The  Australian Commonwealth Minister for Territories, Paul Hasluck (1959), who pioneered assimilation at a Federal level, stated that Aboriginal people required “guardianship and tutelage” to advance to a white person’s standard and receive the requisite privileges such as rights to citizenship and social security. Minister Hasluck (1959) articulated Aboriginal progress under assimilation as facilitated by the crumbling of Aboriginal society so that Aboriginal people may “be mingled with the rest of the people living in Australia”. Their integration needed to be earned through conforming with colonial norms and routines (Hasluck 1951, 2–3). This would enable “all Aborigines and part-Aborigines” to eventually attain the same manner of living as other Australians and to live as members of a single Australian community, enjoying the same rights and

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privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians. (Hasluck 1961, 1)

In the meantime, and until they were sufficiently “civilised”, Aboriginal wards of the state would be subject to insidious discrimination through the partial application of welfare policies and carceral regimes involving confinement on government settlements, residential schools and orphanages. The Welfare Ordinance 1953 (NT), is notorious for triggering the disproportionate removal of Aboriginal children from their families on the grounds of “neglect”. This legislation gave the Administrator the power to declare a person to be a “ward” because that person “stands in need of special care and assistance” (Welfare Ordinance 1953), owing to that person’s “manner of living”; “inability, without assistance, adequately to manage his own affairs” or “standard of social habit and behaviour” (2312). With few exceptions, all Aboriginal people were declared wards. They were subjected to a separate regime of laws, in which native affairs administrators controlled Aboriginal money, children and residence, especially on government settlements. It meant Aboriginal people could not vote, decide freely where they could move, whom they could associate with, or marry, or how they could spend their money. It was not until the 1960s that all Indigenous people could vote in elections in Australia and Canada. The legacy of the exceptionalist policies continues in contemporary ­ settler colonial child removal policies and discrimination in institutions, including penal ones.

Citizenship and Penal Carceralism The wave of civil rights, black power and emerging Indigenous self-­ determination movements in the 1960s and 1970s in settler colonies saw Indigenous peoples acquiring formal citizenship status. This was a contingent citizenship. It meant Indigenous people were freed from the clutches of protectors and guardians, free to leave settlements, but also exposed to new forms of discrimination, especially in the criminal justice system. Chesterman and Galligan (1997) state, they were “citizens without rights”

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by virtue of their social exclusion. A key site of social exclusion was the penal prison in this (continuing) age of penal carceralism. Citizenship was matched with a steep influx of Indigenous people into prisons (Broadhurst 1987, 160).5 To borrow the observations of Russell Hogg (2001, 357) in an Australian context, Indigenous people transitioned from the protectionist and welfare institutions of missions and government reserves (as well as cattle stations and homesteads) to penal institutions. They were part of the same carceral continuity. Liberal subjecthood brought freedoms without opportunities. Equal pay in late 1960s Australia was not matched with equal access to jobs, in fact it precipitated the large-scale lay-off of Indigenous workers in the cattle industry (Anthony 2007). Freedom of movement (away from missions and settlements) was not matched with access to housing. Hogg (2001, 358) explains that it was no longer necessary to control Indigenous people with separate administrative measures because they were subjected to the full brunt of market and legal institutions. Consequently, Indigenous freedom released them into the clutches of the towns and ­cities, particularly the reach of police who served as protectors of white space and ordering. As the arbiters of this new settler colonial spatiality, street police did not “simply impose the law, they imposed the law of an alien culture” (Blagg 2008, 131). Indigenous people were drawn into the purview of the police through white power “worlding” public spaces (Spivak 1988, 82). This “worlding” saw the inscription of colonising worldviews, systems, rules, regulations and practices (Spivak 1988, 82). The police exercised their general powers to control Indigenous movements and lives. The application of neutral criminal procedures and laws presented a systemic disadvantage for Indigenous people who fell outside of white norms. Guha (1997) demonstrates, as mentioned early in this chapter, that despite global pressures towards an inclusive hegemony, colonial power reverts to exclusion and domination in relation to the colonised.  This exhibits a parallel with policing following the granting of citizenship rights to African American people when the “old” Jim Crowe policies of racial segregation were replaced with the “New Jim Crowe” policies of penal segregation in the United States (Alexander 2010). However, crimes for occupying the space of “white” streets was the major determinant of crime, rather than the “war on drugs”. 5

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Under the surveillance and management of penal law enforcement, Aboriginal people were set on a path to imprisonment through their interactions with street police alone. Police developed the practices of laying down multiple charges on Aboriginal people relating to the one “incident”. Common grounds for charging and arresting Aboriginal people are offensive language and behaviour (e.g. drunkenness, vagrancy and breaching move-on orders); deemed offensive in the eyes of the police because it was contrary to white expectations of Aboriginal peoples’ (assimilated) citizenship and contrary to the police’s own (double) standards. The trifecta of charges of “offensive language, resist arrest and assault police” were imposed on Aboriginal people for doing little more than being in public (Eggleston 1976, 176; O’Shane 1992, 5). Policing was and is a street cleaning and cleansing exercise. As citizens, Indigenous people continue to be denied their humanity and dignity and to occupy a space in the “camp” where their existence is stripped to “bare life” (Agamben 1998, see Chap. 8). This existence derived from three confounding flaws in the rule of law for Indigenous people. First, as discussed above, the application of laws to Indigenous peoples is systemically discriminatory. Second, Indigenous people continue to be managed by violence, not simply law; or violence in the name of the law. While the ushering in of citizenship coincided with the official cessation of corporal punishment and the death penalty across Australia, prison, police custody and police apprehensions remain sites of violence for Indigenous people. Despite Foucault (1978, 82) likening imprisonment to punishment of the soul rather than body, in settler colonies violence inflicted on Indigenous bodies, including deaths in custody, is a defining feature of custodial settings. For Indigenous people prison has not been free of violence. Indigenous deaths in police and prison custody and the torture of Indigenous children in youth detention haunt Indigenous carceral experiences and have been widely examined and documented in Australia (Royal Commission into Aboriginal Deaths in Custody 1991). Such experiences continue unabated today (Jordan et al. 2018, 6; Fitz-Gibbon and Gordon 2018; Allam et al. 2018, also see Chaps. 9 and 11). Third, a critical feature of the status of citizenship and the application of the rule of law is the exclusion of Indigenous Laws. The integration of Indigenous people into the non-Indigenous mainstream  has coincided

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with the disintegration of their capacity to practise their own laws and punishment. Even in its progressive form of affording rights and protections under the rule of law, the settler state and legal institutions deny the rights of Indigenous people to assert laws that are at odds with settler laws or economic interests (including rights to be on Country and exercise sovereignty on Country). In its most sinister form, some Indigenous people were made to renounce their identity in order to acquire citizenship. As a strategy of social control for Indigenous people, prison is entrenched in colonial orthodoxy—whether it is for civilising, protective, welfare or punitive purposes. It was therefore not a radical shift when administrative detention gave way to punitive detention in the 1960s and Indigenous people were transferred from state welfare institutions into state prisons. Nonetheless, the sentencing of substantial numbers of Indigenous Australians to prison sealed their fate as a criminal underclass. Rates of incarceration continue to increase for Indigenous Australians and are currently at unprecedented levels, with Indigenous lives increasingly treated as though they do not matter. This period has also witnessed a growth in “alternatives” to custody through diversionary options, founded on restorative justice principles. In the next chapter we interrogate the relationship between restorative justice and growing demands for Indigenous justice.

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Sinclair R (2007) “Identity Lost and Found: Lessons From The Sixties Scoop”. The First Peoples Child & Family Review 3(1): 65–82. Snow D and Moffitt B (2012) “Straddling the Divide: Mainstream Populism and Conservatism in Howard’s Australia and Harper’s Canada”. Commonwealth and Comparative Politics 50(3): 271–292. Spivak G C (1988) “Can the Subaltern Speak?” In P Williams and L Chrisman (eds) Colonial Discourse and Post-Colonial Theory: A Reader. New  York: Columbia University Press, 66–111. Stanner W E H (1968) After The Dreaming: Black And White Australians—An Anthropologist’s View, Boyer Lecture Series. Australian Broadcasting Corporation. Thorpe B (1992) “Aboriginal Employment and Unemployment: Colonised Labour”. In C Williams and B Thorpe (eds) Beyond Industrial Sociology: The Work of Men and Women. Sydney: Allen & Unwin, 88–107. Tranter K (2003) “Mad Max: The Car and Australian Governance”. National Identities 5(1): 67–81. Tranter K and Anthony T (2019) “Race, Australian Colonialism and Technologies of Mobility in Kalgoorlie”. University of Western Australia Law Review 45(1): 99–135. Trocme N, Knoke D and Blackstock C (2004) “Pathways to the Overrepresentation of Aboriginal Children in Canada’s Welfare System”. Social Service Review 78(4): 577–600. Truth and Reconciliation Commission of Canada (2015) “Honouring the Truth, Reconciling for the Future. Summary of the Final Report of the Truth and Reconciliation Commission of Canada”. http://trc.ca/assets/pdf/Honouring_ the_Truth_Reconciling_for_the_Future_July_23_2015.pdf Tulich T, Blagg H and Hill-de Monchaux A (2017) “Miscarriage of Justice in Western Australia: The Case of Gene Gibson”. Griffith Journal of Law & Human Dignity 5(2): 118–142. Turner-Walker J (2010) Clash of the Paradigms: Night Patrols in Remote Central Australia. Thesis presented for the degree of Master in Criminal Justice. University of Western Australia, Crime Research Centre, Faculty of Law. Wahlquist C, Evershed N and Allam L (2018) “Half of Indigenous Women Who Died in Custody Did Not Receive Appropriate Medical Care”. The Guardian, 10 September. https://www.theguardian.com/australia-news/2018/sep/10/ indigenous-women-in-custody-more-likely-than-men-to-have-died-wherepolicy-not-followed

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Wake C H (1962) “George Clarke and the Government of the Maoris: 1840–45”. 10, 39 Historical Studies: Australia and New Zealand 10(29): 339–365. Walter M (2016) “Indigenous Peoples, Research and Ethics”. In M Adorjan and R Ricciardelli (eds) Engaging with Ethics in International Criminological Research. Oxon: Routledge, 87–105. Wangan and Jagalingou Family Council (n.d.) “Our Fight: Stop Adani Destroying Our Land and Culture”. http://wanganjagalingou.com.au/ our-fight/ Warren C (2014) “Smallpox at Sydney Cove—Who, When, Why?” Journal of Australian Studies 38(1): 68–86. Welch A R (1988) “Aboriginal Education as Internal Colonialism: The Schooling of an Indigenous Minority in Australia”. Comparative Education 24(2): 203–215. Williams R (1977) Marxism and Literature. London: Verso. Wilson P (1982) Black Deaths, White Hands. Sydney: Allen & Unwin Wolfe P (2006) “Settler Colonialism and the Elimination of the Native”. Journal of Genocide Research 8(4): 387–409.

Legal Materials Attorney-General v Brown (1847) 1 Legge 312. Coe v The Commonwealth (1993) 118 ALR 193. Mabo v State of Queensland (No. 2) (1992) 175 CLR 1. Mason v R [2013] NZCA 310. Ordinance for the Protection, Maintenance and Upbringing of Orphans and Other Destitute Children of the Aborigines 1844 (SA). Queen v Symonds (1847) NZPCC 388. R v Mason ([2012] NZHC 1849). R v Murrell & Bummaree [1836] NSWSC 35 (5 February 1836) and Related Archival Materials. http://www.austlii.edu.au/au/cases/nsw/NSWSupC/ 1836/35.html Walker v New South Wales (1994) 182 CLR 45. Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC).

6 Restorative Justice or Indigenous Justice?

Restorative Justice continues to provide an alternative horizon for those involved in justice reform in the Global North. We do not intend to rehearse themes that have already been exhaustively aired in our own work and that of other proponents and critics of restorative approaches (see Blagg 2016, 62–75; Anthony 2017). What we are interested in is continuing to test the boundaries between mainstream justice and Indigenous justice. There are consistent, but often unacknowledged, patterns of incommensurability between Restorative Justice and Indigenous justice (see Tauri 2016, 46; Cunneen 2008). We suggest that Restorative Justice and Indigenous justice have to be understood as distinct and fundamentally different projects. Restorative Justice, at least in its present incarnation, may not survive a decolonising turn because, despite claims to the contrary, it is a modernist, Euro-north American concept concerned with reforming what remains an essentially Western paradigm of justice reform. By contrast Indigenous justice adopts a decolonising stance and is concerned with transforming relationships between settler colonialism and Indigenous peoples. Restorative Justice has not made the system as a whole less punitive and retributive, instead it has been co-opted onto the margins to supplement the © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_6

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­ anagement of minor youth offending. Further, Restorative Justice has m had nothing useful to say about bedrock Indigenous demands for the return of sovereignty over land and self-determination. This may seem an unfair statement. Restorative Justice advocates might respond that these are not what Restorative Justice is about. But, if that is the case, then they need to stop presenting their project as an Indigenous practice, since they are clearly far distant from the core precepts of Indigenous justice systems, founded on the authority and status of Elders and grounded in place. Restorative Justice processes may have some limited utility for Indigenous communities provided they are not viewed as ends in themselves but, instead, act as what Martin Nakata calls points of “cultural interface” (2010) with Indigenous owned processes. Restorative Justice must be content to follow rather than lead in order to prevent the continuous epistemic appropriation of Indigenous Laws and cultures to satisfy non-Indigenous aspirations. Mainstream forms of restorative practice, most notably those developed by the white justice system and imposed from above onto Indigenous place, do not match demands of Indigenous people, who rarely see their interests and experiences reflected in these mainstream practices. Restorative Justice generally presents itself as an alternative to the mainstream system, but from an Indigenous perspective it looks more like a simple variation on an all too familiar theme. State initiated Restorative Justice constructs a Eurocentric imaginary of its Indigenous Other, assuming that a few concessions to Indigenous “culture” (such as having Indigenous Elders present at diversionary conferences) can sugar the bitter pill of Indigenous dispossession. Elizabeth Povinelli (2002), we noted earlier, refers to such strategies as “cunning recognition”: accepting a degree of cultural difference as long as it does not constitute a radical alterity that threatens white supremacy, particularly where this includes claims to land. Restorative Justice is comfortably lodged in what we have called earlier the “space and flow” of networked governance. However, as we have also argued, following Escobar (2001) Indigenous cultures do not sit in space but in place. It is place, or Country, that remains at the centre of Indigenous systems of knowledge and cosmologies.

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Foundational Mythologies A number of Australian criminologists have been critical of the founding mythology of Restorative Justice; that it is rooted in an Indigenous worldview (Cunneen 1997; Blagg 1997; Daly 2002). Furthermore, in Australia the introduction of programmes claiming to be grounded in restorative philosophies, such as diversionary programmes for Indigenous youth, has not halted, let alone reversed, the slide towards mass incarceration. It is possible to envisage a situation in the very near future in a number of Australian States (notably Western Australia, the Northern Territory and Queensland) where there will be more Indigenous children involved in the care and protection and justice systems than free in the community. At present in Western Australia upwards of 50% of children who are taken into what is misleadingly referred to as a care system are Aboriginal, and many of these will form the bulk of children in detention (the rate hovers around 80%) (Government of Western Australia, Department of Communities 2017, 8). There have been calls for alternative forms of dispute resolution based on Indigenous law, rather than orientalised versions of Indigenous law popularised by white commentators and encapsulated in prevailing Restorative Justice frameworks. However, these have fallen on deaf ears in governments, who point to a few initiatives, largely dominated by the police and other mainstream agencies, as demonstrating their commitment to Indigenous justice reform. The early promise of Restorative Justice lay in its commitment to collective problem solving and faith in the capacity of lay peoples to resolve conflict (Roach 2003) rather than in any one particular institutionalised practice or method (Clamp 2013). Making Restorative Justice relevant to the needs of Indigenous and other colonised subjects requires it to be informed by notions of decoloniality and inter-culturality (see below).

Global RJ Restorative Justice, in its “globalised” form (Tauri 2016, 52) is an ideology of the Global North rather than something emerging organically from the Global South. This is not to say that Indigenous people have not

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contributed to its emergence. What has occurred is a “purposeful and significant commodification of Indigenous life-worlds by policy workers, restorative justice advocates and justice entrepreneurs, especially in settler colonial jurisdictions” (Cunneen and Tauri 2016, 140, emphasis in the original). This commodified, standardised and homogenised version of Indigenous peace making has become a global commodity, but there is little in this sanitised version that Indigenous groups would recognise as credibly Indigenous. Cunneen and Tauri (2016) pick out the centrepiece of globalised crime control, the FGC (family group conference) model, as an especially marketable commodity (for justice entrepreneurs), given its purportedly authentic roots in Māori culture (also see Tauri 2016). Brunilda Pali (2017) writes about the limits of retributive responses to crimes, that do nothing to shift the underlying causes or change community sentiments; but she also recognises the limits of restorative approaches, which similarly cannot easily unravel years of learned prejudice, structural violence and entrenched cultural values. Pali’s work with immigrants and refugees also uncovers the fact that, despite these groups being over-represented in Europe’s justice systems, workers in the Restorative Justice field show little concern about the ethical, political and moral injustices of this, but they are concerned with the “problems” of having to deal with them (different languages, cultural differences, etc.). There is a real danger that restorative practices will bifurcate to reflect European apartheid, reserved for those of “us” who can claim citizen status, and deemed redeemable, while the draconian apparatuses of the justice system are employed to manage those with “weak claims of membership” (Aliverti 2015, 125). Zygmunt Bauman employed the term “adiaphorization” to describe the processes through which people are dehumanised and pushed outside the circle of moral responsibility (Bauman and Lyon 2013). In Australia, research shows that Aboriginal people are much less likely to benefit from Restorative Justice programmes (Blagg 2017). Once expunged from society, their lives become worthless, what Agamben called homo sacer: the one who can be killed without consequences (Agamben 1998), as we discuss in the following chapters.

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Neighbourhood Focus Should Restorative Justice break free from its sinecure on the margins of the criminal justice system and reconnect with peace-making and neighbourhood-­based justice movements, rather than dealing with minor delinquency? Most compellingly: what role is there for Restorative Justice in re-humanising our relationships with the dehumanised Other? Supporters of Restorative Justice would argue that it has had a largely energising impact on debates about justice in late modernity. For many, it has offered a compelling alternative to the narrative of punitive populism, and has equipped scholars, researchers and practitioners with a set of counter-arguments to the negative mantra of “tough on crime” correctional policies. For many activists engaged within or on the margins of the justice system, it has provided a language and context within which to imagine an alternative justice model: person centred and de-­ bureaucratised. Restorative thinking assisted many to demystify justice, transforming it from a static, rule-bound, opaque and highly bureaucratised system that “does things” to people, into a highly interactive sphere of encounters and transformative experiences that enable people to “do things” for each Other. We do not dispute the success of Restorative Justice in shifting at least some “lenses” (Zehr 2005), rather that its global ambitions and claims reflect continuity with an essentially modernist and Eurocentric worldview at a time when the world, even the European world, is being radically transformed. Critical Indigenous scholarship stresses the extent to which seemingly progressive ideas, emanating from the Global North, are nonetheless embedded in a body of modernist knowledge. Such knowledge has supported and legitimated colonial social relations and justified the dispossession of Indigenous peoples. Restorative Justice has not emerged organically from within Indigenous communities, it arrives on the back of a wagon train of top-down government policies, statutes and laws that also include mandatory sentencing laws, assimilationist child removal policies, insensitive and inappropriate forms of policing, petty restrictions on driving, and the destruction of native flora and fauna. There is what we might call, after the ideas of Robert Michels (1962), the “iron

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law” of white intervention into the Indigenous domain. A “concern” about social issues in Indigenous communities ineluctably leads to a significant deployment of the repressive state apparatuses, followed by mass incarceration (as we discuss in the example “intervention” in the Northern Territory of Australia in a later chapter). A decade of politicalised empathy with the victimisation of Indigenous women on remote Indigenous communities has seen a massive leap in the imprisonment of these very women.

Indigenous Renaissance In recent years there has been a global renaissance of Indigenous cultural politics. In South America, to take a topical example, it energised the gira a la izquierda (“left turn”) and Indigenous resistance—known also as a “second independence” or the “South American spring”—in 2013 (Tauri 2016, 60; Postero 2019). Bolivia’s “Pluri-National Government” initiated wide-ranging measures to recognise the rights of what the 2009 Constitution calls “nation and rural native indigenous people” (Constitute Project 2018, 14, 25), consisting of “every human collective that shares a cultural identity, language, historic tradition, institutions, territory and world view, whose existence predates the Spanish colonial invasion” (2018, 14). More broadly in parts of Latin America there has been a shift towards a greater interest in “the interconnectedness of economics with the political, sociocultural, and environmental spheres” (Walsh 2010, 16). For example, in the Andes Region in Ecuador there is a pronounced emphasis on the notion of buen vivir, “living well” as an alternative to material progress and self-enrichment (Walsh 2010, 18). Indigenous epistemologies form the bedrock of resistance to attempts by the Global North to standardise, homogenise and globalise (Meyer and Maldonado Alvarado 2010, 13) the Indigenous world. The world’s 340 million or so Indigenous peoples vary considerably across the globe, yet they share common experiences of “loss of land and subsistence, abrogation of treaties, and the imposition of psychologically and socially destructive assimilation policies” (Niezen 2003, 87). These historical and continuing injustices are acknowledged in the United Nations

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Declaration on the Rights of Indigenous Peoples (2007) which establishes “that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such”.

Living Well The concept of buen vivir places Indigenous Knowledge and ways of being at the heart of progressive politics. In Australia, Yawuru man Patrick Dodson (1991) has been central in recuperating the Yawuru notion of liyan and ensuring it informs negotiations with government and industry around Native Title. “Good liyan” transcends the Western “development” model and its obsession with economic growth and materialism. Liyan is much broader than that. It is about relationships, family, community and what gives meaning to people’s lives. Yawuru people’s connection to country and [the] joy of celebrations [of ] our culture and society is fundamental to having good liyan. (Yu 2014)

The settler colonial state has been a poor custodian of Indigenous rights: the settler state has persecuted rather than protected Indigenous people. Indigenous people globally seek restitution and reparation for a host of crimes committed by settler colonists. Their demands include: native title and land rights; the end to impunity from prosecution for human rights abuses (including genocide); a focus on state (rather than just individual) violence; a leading role for strategies of self-­determination; the recognition of Indigenous sovereignty, and a willingness to acknowledge Indigenous Laws as a fact of life for Indigenous peoples. This kind of engagement would, inevitably, commit restorative practitioners to become involved in the labour of decoloniality; that is, actively working with Indigenous peoples to decolonise a range of structures, mentalities and organisations that have perpetuated Indigenous dispossession, rather than simply offering a discrete service on the margins of the mainstream justice system.

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Is Restorative Justice just another globalised and de-territorialised “method” circulating in the reified ether of international policy transfer through the medium of Western NGOs? Embedded in a Northern epistemology and philosophy, Restorative Justice is focused on individuals as opposed to collective rights, and individual “victims” and “offenders” as autonomous agents, each with responsibility for his/her own actions: notions at odds with Indigenous ontology. Critical thinking in relation to Restorative Justice may question the extent to which, in relation to the Global South, it represents a genuinely emancipatory practice, or simply a part of contemporary coloniality of power. Does Restorative Justice simply legitimate Western style solutions, while posing as a practice sympathetic to Indigenous goals and cultures? Rather than viewing the justice system as built upon shared values and consensus, a critical, decolonising approach takes account of social inequalities and colonial oppression, which are played out within the arena of the justice system. It tends to see the criminal justice system as a site of social, cultural, economic and racial contestation rather than a neutral and impartial set of mechanisms.

Epistemicide Boaventura de Sousa Santos (2014) employs the term “epistemicide” to describe how Western domination has systemically denied the knowledge systems and epistemologies indigenous to the Global South. He describes this process as a form of “cognitive injustice” (2014, 15, 189)—a massive failure to respect the knowledge rights and interests of groups who live differently. Viewed from the perspective of the Global South, there is nothing inherently radical or progressive about Restorative Justice. Evidence suggests that the countries that have done most to resist punitive populism, have done so pretty much on the basis of pre-existing values associated with social democracy, rather than by reference to restorative practices (Pratt and Eriksson 2013). By contrast, the society that produces the most literature on contemporary “RJ” (the United States) is the brand leader in punitive excess and institutionalised and racialised state violence. Chris Cunneen (2011) insightfully argues that

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there is no reason why RJ could not be deployed alongside repressive crime control measures and that, in the case of settler colonies, it cheerfully co-exists with extreme forms of punitive excess directed at Indigenous peoples.

Racialised Punishments The fact is that in many societies Restorative Justice has been enclaved into the justice system, where it exists in a non-threatening symbiosis with punitive sanctions as part of a punishment continuum. In Western Australia, the objectives of the Young Offenders Act 1994 (YOA) includes (s 6(ii)) “punishing and managing young persons who have committed offences” (emphasis added), yet the Act also includes reference to reintegration and the protection of legal rights. This is important because it conflicts with beliefs that, over time, Restorative Justice would change the way the system as a whole treats young people. Rather, the reverse occurred; instead of Restorative Justice humanising the system, it has been co-opted onto its margins and its radical edge blunted. It is quite possible to have a policy commitment to Restorative Justice and have mass incarceration. The major factor driving punitive excess in Australia is race, as Baldry and Cunneen (2014, 279) maintain: punishment in Australia is highly racialised. The two jurisdictions in Australia, which have the highest imprisonment rates (the Northern Territory and Western Australia), are also the jurisdictions with the largest proportion of Indigenous people living within their boundaries. Indeed in Western Australia, Indigenous imprisonment rates are well beyond any meaningful comparison to other rates in Australia. The fact that these jurisdictions employ the justice system to manage the fruits of indigenous dispossession is, naturally, not emblazoned on their websites.

The webpage of the Western Australian Department for Corrective Services, Youth Justice Services (2009) is a floral tribute to its adherence to the kinds of goals of modern youth justice policy, “evidence led”, “multi-agency”, “what works”, and so on, describing itself thus:

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Youth Justice Services is a multi-disciplinary team working to provide an evidenced based responsive service to young people and their families when they come into contact with the youth justice system. It aims to reduce antisocial behaviour, strengthen interagency partnerships and prevent likelihood of further escalation through the youth justice system. (Department of Corrective Services WA 2009, 1)

While reference is made to detention only being an “option of last resort” (Department of Corrective Services WA 2009, 1), it neglects to mention that for many Indigenous youth incarceration is an inevitable and normalised aspect of life. The incarceration of Indigenous people in states like Western Australia has risen exponentially as part of a new strategy of “governing through crime” that masks a new assimilationist strategy by the settler state since the mid-1990s (Anthony 2009). The difference between Indigenous and non-Indigenous imprisonment has steadily increased since Restorative Justice was introduced and prison became a sanction of “last resort” (Department of Corrective Services WA 2009). In Western Australia, a suite of “front end” diversionary options were established under the YOA 1994 including formal and informal police cautioning, and a system of multi-agency Juvenile Justice Teams (JJTs) tasked with increasing the rate of diversion for youths at risk of enmeshment in the justice system through family conferencing. JJTs were Western Australia’s contribution to the restorative turn which saw many Australian States introduce diversionary schemes loosely based on the New Zealand model established under the Children, Young Persons and their Families Act 1989. Police in Western Australia have discretion to refer the matter to a JJT, conditional on the offence not falling within one of the Scheduled Offences of the YOA, which include crimes of violence as well as some traffic and drug-­ related offences. Statistics indicate that on an average night, 70% of the Western Australian youth detention regime were Indigenous, yet they comprise only 3% of the overall youth population (Department of Corrections WA 2019). Diversionary initiatives were successful in halving the numbers of young people being taken to the Perth Children’s Court by police. Unfortunately, most of those diverted were non-Aboriginal. The Aboriginal

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over-representation rate actually increased after the reforms. Aboriginal representative bodies in Western Australia pointed to a lack of commitment by government to fully implement those recommendations that might have increased the rate of diversion. In 2007, around 80% of nonAboriginal young people were being diverted from court, while only 55% of young Aboriginal people were diverted (Blagg 2012, 483). The familiar repertoire of strategies and schemes established as part of the diversionary turn in the 1990s are clearly irrelevant in contexts increasingly shaped by the mass imprisonment of those who are deemed beyond “integration”.

Marginalised or Oppressed? For their part, Indigenous youth and their families are not “marginalised” by the justice system. They are oppressed by it. Mainstream criminology produces an array of explanations for Indigenous over-representation in terms that resonate with mainstream values and interests; generally pathologising Indigenous culture and/or identifying various manifest symptoms such as alcohol abuse and “poor parenting” as causing Indigenous over-representation (see Weatherburn 2014, as a particularly de-contextualised account, which is also discussed briefly in our methodologies Chap. 5). We hesitate to call these perspectives “theories” as they are in a real sense abandoning theoretical explanations altogether, in favour of a bloodless empiricism and a crude “realism”, which eschews the kinds of grounded approach required to make sense of historically structured inequality. The decline in interest in theoretical inquiry is reflected in the way “RJ” has been packaged up in conformity with the “what works” paradigm. As noted earlier: ‘RJ’ refers to the product we are sold at conferences and seminars, particularly in the United States, where world best practice is defined and the What Works? ‘evidence base’ assembled. It is being packaged and exported globally, through numerous supranational bodies and institutions concerned with ‘policy transfer’, ‘policy diffusion’ and ‘policy convergence’. RJ has become a standardised, homogenised commodity—a brand, rather like

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McDonalds or Starbucks—much the same everywhere one travels (generally bland and indigestible). For example, US ‘Loss Prevention’ company CEC offers a “mobile-based platform …to identify, qualify and divert your low risk offenders from the traditional legal process by enrolling them in CEC’s accredited educational programme all within minutes”. RJ is part of this package. We find ourselves increasingly having to ‘sell’ restorative solutions in neo-liberal terms: it is a cheap alternative; it saves ‘time’; it does not challenge the fundamental injustice of a justice system or threaten power. This homogenised and standardised package arrives rather like a flat-packed bookshelf to be assembled at the local level with a few local cultural adornments. (Blagg 2017, 71)

Policy Convergence There is now a burgeoning literature on “policy convergence” (convergence around standardised neo-liberal values, of course). “What is common to all this literature”, Clarke et al. (2015, 14–15) suggest, “is the rather linear notion of movement being described. Policy ideas or models are rendered as ‘objects’ to be loaded up on a truck at point A and unloaded at point B”. The non-Western world does appear in the production process, for what meditation on the merits of RJ would be complete without reference to native peacekeeping? However, there is always the sense that this is a highly selective process, where we cherry-pick those elements of Indigenous Knowledge that suit our predilections, while ignoring those that conflict with them. Comaroff and Comaroff (2012a, 1) sum this up perfectly when they describe the ways the Global South is viewed from the perspective of the North, as “reservoirs of raw fact” (rather than “sources of refined knowledge”) “from which Euromodernity might fashion its testable theories and transcendent truths, its axioms and certitudes, its premises, postulates and principles”. The Comaroffs correctly point out that Southern epistemology is insinuated into the Western knowledge production process as a kind of “raw material” (2012a, 101) to be refined in the academies, NGOs and think tanks of the West. We are not arguing that policy transfer is an inevitably negative practice: it can be energising and productive. However,

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policy exchange should involve a process of dialogue and negotiation. As Edward Said (1983, 226) observes in The World, the Text, and the Critic: Like people and schools of criticism ideas and theories travel—from person to person, from situation to situation, from one period to another. Cultural and intellectual life are usually nourished and often sustained by the circulation of ideas.

Said (1983, 226) offers the caveat that such movements “are never unimpeded”, they undergo processes of “representation and institutionalisation different from those at the point of origin” (1983, 226), arguing that travelling ideas tend to dissipate as they traverse time and space, they become domesticated and assimilated, losing their radical meaning, particularly so when they move from the South to the North. Restorative Justice has travelled globally and been translated in the process. Take, for example, the Aotearoa/New Zealand family conferencing approach, embedded in legislation that empowers Mãori society and lays down strict limits on the role of the police in the justice process. As it has “travelled” northwards, the ideas have been de-radicalised and assimilated into mainstream justice. Restorative Justice, it could be argued, has been “represented and institutionalised”. The unfortunate coupling of restorative processes with “shaming” (of individuals by the system) as it travelled across the Tasman Sea to Australia, for example, further de-radicalised the idea, leaving it the property of an unreformed and ill-informed justice and policing systems.

An “Inter-Cultural” Turn? “Inter-cultural” dialogue attempts to construct engagement spaces in-­ between cultures and respects a “pluriverse” of epistemologies and worldviews. It aims to create greater mutual understanding between the margins and the mainstream, North and South (Merlan 1998; Escobar 2011). There are concerns, however, that inter-cultural spaces can themselves become sites of assimilation, at least for Indigenous peoples, as Morphy and Morphy (2013, 177) argue, “[t]he intercultural, once

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articulated as a conceptual space, has the potential to become the space where Aboriginal people gradually merge with the mainstream”. Helpfully, Catherine Walsh (2010) distinguishes between what she calls “functional” and “critical interculturality”. “Functional” interculturality does not address underlying inequalities that seek to maintain the system, while “critical interculturality” seeks “transformation in social, political, epistemic, and existential terms” (2010, 21). That is, a new ordering of structures, institutions, and relations (2010, 21). Similarly, Mignolo (2007, 32–33) draws the distinction between “multiculturalism”, which “concede[s] ‘culture’ while maintaining ‘epistemology’”, and “inter-culturality” which was devised by “Indigenous intellectuals to claim epistemic rights”.

Restorative Justice and Epistemic Rights The question is: how can Restorative Justice assist in promoting the epistemic rights of the Indigenous people, validate Indigenous worldviews, and create a major transformation of social structures and institutions? Of course, as an isolated practice Restorative Justice cannot. It has to build alliances with those groups the mainstream chooses to ignore, and often oppress. Building inter-cultural space can be a lengthy and complex business. Our research suggests that Aboriginal owned and managed organisations remain acutely aware of the dangers posed by inter-cultural dialogue and cautiously approached engagement with mainstream structures. However, they also regard such engagement as essential, indeed unavoidable, given the extent to which mainstream structures are increasingly fulfilling a gate-keeper role in relation to resources. Despite the clear dangers associated with inter-cultural dialogue, creating inter-­ cultural spaces (or “interstitial” spaces (Bhaba 1994)) between cultures, does offer an alternative pathway to either assimilationist, supremacist or separatist narratives. The strength of an inter-cultural approach lies in its capacity to take us beyond “deeply entrenched and viciously idealized ‘us and them’ divisions” (Kumar 2009, 91) between coloniser and colonised, creating possibilities for fresh narratives to emerge within “in-between” (Bhaba 1994),

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or “liminal” (Blagg 2008) spaces. Colonial power remains ambivalent about hybridity and inter-culturality. After all, colonial law was geared towards preventing “mixedness”, contamination, and miscegenation, and policing the purity of racial boundaries. “Inter-culturality” is given expression in the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which promotes “cultural interaction in the spirit of building bridges among peoples” (Article 1(d)). It regards “inter-culturality” as the “equitable interaction of diverse cultures and the possibility of generating shared cultural expressions through dialogue and mutual respect” (Article 4(8)) (UNESCO 2017). The reasons for this cultural turn in the settler colonial context lie in a range of interconnected factors. First, the increasing strength, confidence and authority—internationally—of Indigenous community representative structures, established to negotiate and interface with government on a diversity of issues (see Chap. 3). Furthermore, Aboriginal land rights legislation and Native Title (in Australia and Canada) and modern-treaty making in Canada, in spite of its many flaws, has led to many Indigenous people repossessing traditional lands and, consequently, re-invigorating traditional men and women’s ceremonies and building distinctive forms of Indigenous cultural capital (Peterson 2000, 213): creating new engagement spaces where Indigenous cultural practices can gain currency in the non-Indigenous world. Noel Pearson (1997) talks of the “recognition” space of Native Title. In this space Indigenous people are able to “translate” possession of Country into “rights and interests” that have “practical effects within the dominant society’s legal, political and economic systems” (Martin 2009, 102–103). There is an emerging, though fragile, “Indigenous hybrid economy”, which can involve tripartite partnerships involving “free market and customary and state components” (Altman 2005, 1)

Back to Country Critical restorative practices would begin by questioning not just the shortcomings of our adversarial system as a solution to individual crime-­related problems, but also the extent to which it is deliberately criminogenic

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in nature. Simply promoting tolerance and dialogue as ends in themselves, without exploring the systemic causes of inequality and prejudice that underlie criminalisation, simply turns Restorative Justice into a slave to the system it purports to challenge. A critical Restorative Justice would question the semi-mystical faith in the “conference” as the cornerstone of restorative practice and the insistence on “epiphany” as its desired outcome, rather than mutual understanding and problem solving. It would remain sceptical about the role of powerful agencies such as the police as the custodians of restorative processes. It would move on from the unfortunate focus on shaming, especially for young offenders (naturally, it should be reserved for capitalist fat cats and dictators who do have a public status to lose). In relation to the world’s Indigenous people, Restorative Justice practitioners have to accept that the practices we have adopted in the belief that they are somehow in step with Indigenous worldviews is a fiction, intended not so much to assist Indigenous people but to comfort ourselves by warming up the cold leftovers of Western justice with a pinch of Orientalist spice. Instead, Restorative Justice needs to engage with the historical demands of Indigenous people for their land and their way of life; though constantly imperilled by forces of colonialism, they remain resilient and provide a vision of an alternative to Euro-modernity.

References Agamben G (1998) Homo Sacer: Sovereign Power and Bare Life. D Heller-Roazen (trans.). Stanford, CA: Stanford University Press. Aliverti A (2015) “Doing Away with Decency? Foreigners, Punishment and the Liberal State”. In A Eriksson (ed) Punishing the Other: The Social Production of Immorality Revisited. London: Routledge. Altman J C (2005) “The Indigneous Hybrid Economy: A Realistic Sustainable Option for Remote Communities?” Paper presented to the Australian Fabian Society, Melbourne, 26 October 2005. https://openresearch-repository.anu. edu.au/bitstream/1885/151840/1/Altman_hybrid_0.pdf Anthony T (2009) “Governing Crime in the Northern Territory Intervention”. Law in Context 27(2): 90–113.

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——— (2017) “The Limits of Reconciliation in Criminal Sentencing”. In S Maddison, T Clark and R de Costa (eds) The Limits of Settler Colonial Reconciliation Non-Indigenous People and the Responsibility to Engage. Singapore: Springer, 249–270. Baldry E and Cunneen C (2014) “Imprisoned Indigenous Women and the Shadow of Colonial Patriarchy”. Australian and New Zealand Journal of Criminology 47(2): 276–298. Bauman Z and Lyon D (2013) Liquid Surveillance: A Conversation. Cambridge: Polity Press. Bhabha H K (1994) The Location of Culture. London: Routledge. Blagg H (1997) “A Just Measure of Shame? Aboriginal Youth and Conferencing in Australia”. The British Journal of Criminology 37(4): 481–501. ——— (2008) “Colonial Critique and Critical Criminology: Issues in Aboriginal Law and Aboriginal Violence”. In T Anthony and C Cunneen (eds) The Critical Criminology Companion. Sydney: Hawkins Press, 129–146. ——— (2012) “Re-Imagining Youth Justice: Cultural Contestation in the Kimberley Region of Australia since the 1991 Royal Commission into Aboriginal Deaths in Custody”. Theoretical Criminology 16(4): 481–491. ——— (2016) Crime, Aboriginality and the Decolonisation of Justice. 2nd ed. Sydney: Federation Press. ——— (2017) “Doing Restorative Justice ‘Otherwise’: Decolonising Practices in the Global South”. In I Aertsen and B Pali (eds) Critical Restorative Justice. Oxon: Hart, 61–78. Clamp K (2013) Restorative Justice in Transition. London: Routledge. Clarke J, Bainton D, Lendvai N and Stubbs P (2015) Making Policy Move: Towards a Politics of Translation and Assemblage. Bristol: Bristol University Press. Comaroff J and Comaroff J L (2012a) Theory from the South: Or, How Euro-­ America is Evolving Toward Africa. London: Paradigm Publishers. Constitute Project (2018) Bolivia (Plurinational State of )’s Constitution of 2009. Max Planck Institute (trans.). Oxon: Oxford University Press. https://www. constituteproject.org/constitution/Bolivia_2009.pdf Cunneen C (1997) “Community Conferencing and the Fiction of Indigenous Control”. Australian and New Zealand Journal of Criminology 30(3): 292–311. ——— (2008) “Understanding Restorative Justice Through the Lens of Critical Criminology”. In T Anthony and C Cunneen (eds) The Critical Criminology Companion. Sydney: Hawkins Press, 249–266.

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——— (2011) “Postcolonial Perspectives for Criminology”. In M Bosworth and C Hoyle (eds) What is Criminology? Oxon: Oxford University Press, 249–266. Cunneen C and Tauri J (2016) Indigenous Criminology. Bristol: Policy Press. Daly K (2002) “Restorative Justice: The Real Story”. Punishment and Society 4(1): 55–79. de Sousa Santos B (ed) (2014) Epistemologies of the South: Justice Against Epistemicide. Boulder, CO: Paradigm Publishers. Department of Corrections (WA) (2019) “Aboriginal Justice Program (AJP)”. Government of Western Australia. https://department.justice.wa.gov.au/A/ aboriginal_justice_program.aspx?uid=8425-1678-2541-0773 Department of Corrective Services, Youth Justice Services (2009) “Working with the Community to Address the Causes of Youth Offending”. Government of Western Australia. https://www.correctiveservices.wa.gov.au/_files/youthjustice/yjs-philosophy.pdf Dodson P (1991) Regional Report of Inquiry into Underlying Issues in Western Australia. Canberra: Australian Government Publishing Service. Retrieved from http://trove.nla.gov.au/work/20038786?selectedversion=NBD7975627 Escobar A (2001) “Culture Sits in Places: Reflections on Globalism and Subaltern Strategies of Localization”. Political Geography 20(2): 139–174. ——— (2011) Encountering Development: The Making and Unmaking of the Third World. Princeton, NJ: Princeton University Press. Government of Western Australia Department of Communities (2017) “Better Choices: Youth in WA”. https://www.communities.wa.gov.au/media/1090/ better_choices_youth_wa-1.pdf Kumar M (2009) “Review Essay: Humanism and Its Other: Difference and Disjuncture in Postcolonial Theory”. Distinktion: Scandanavian Journal of Social Theory 10(1): 87–99. Martin D (2009) “The Governance of Agreements Between Aboriginal People and Resource Developers: Principles for Sustainability”. In J Altman and D Martin (eds) Power, Culture, Economy: Indigenous Australians and Mining. Canberra: Centre for Aboriginal Policy Research, 99–126. Merlan F (1998) Caging the Rainbow: Places, Politics and Aborigines in a North Australian Town. Honolulu: University of Hawaii Press. Meyer L and Maldonado Alvarado B (eds) (2010) New World of Indigenous Resistance: Noam Chomsky and Voices from North, South, and Central America. San Francisco: City Lights.

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Michels R (1962) Political Parties: A Sociological Study of the Oligarchal Tendencies of modern Democracy. 2nd ed. New York: Free Press. Mignolo W (2007) “Epistemic Disobedience: The De-colonial Option and the Meaning of Identity in Politics”. Niterói 22:11–41. Morphy F and Morphy H (2013) “Anthropological Theory and Government Policy in Australia’s Northern Territory: The Hegemony of the ‘Mainstream’”. American Anthropologist 115(2): 174–187. Nakata M (2010) “The Cultural Interface of Islander and Scientific Knowledge”. The Australian Journal of Indigenous Education 39(S1): 53–57. Niezen R (2003) The Origins of Indigenism: Human Rights and the Politics of Identity. Berkeley: University of California Press. Pali B (2017) “‘Cultural’ Problematisations in the Restorative Justice Discourse”. In B Pali and I Aertsen (eds) Critical Restorative Justice. Oxon: Hart, 175–191. Pearson N (1997) “The Concept of Native Title at Common Law”. Australian Humanities Review, Issue 5. http://australianhumanitiesreview.org/1997/03/ 01/the-concept-of-native-title-at-common-law/ Peterson N (2000) “The Expanding Aboriginal Domain: Mobility and the Initiation Journey”. Oceania 70(3): 205–218. Postero N (2019) The Indigenous State: Race, Politics, and Performance in Plurinational Bolivia. Oakland, CA: University of California Press. Povinelli E (2002) The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism. Durham, NC: Duke University Press. Pratt J and Eriksson A (2013) Contrasts in Punishment: An Explanation of Anglophone Excess and Nordic Exceptionalism. London: Taylor & Francis. Roach D (2003) Accountability in Restorative Justice. Oxford: Oxford University Press. Said E (1983) The World, the Text, and the Critic. Cambridge, MA: Harvard University Press. Tauri J (2016) “Indigenous Peoples and the Globalization of Restorative Justice”. Social Justice 43(3): 46–67. UNESCO (2017) Basic Texts of the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Paris, France: Diversity of Cultural Expressions Section, Cultural Sector. https://unesdoc.unesco.org/ ark:/48223/pf0000260710.page=33 United Nations (2007) United Nations Declaration on the Rights of Indigenous Peoples. Resolution adopted by the General Assembly on 13 September, 61/295. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

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Walsh C (2010) “Development as Buen Vivir: Institutional Arrangements and (De)Colonial Entanglements”. Development 53(1): 15–21. Weatherburn D (2014) Arresting Incarceration: Pathways out of Indigenous Imprisonment. Canberra: Australian Studies Press. Yu P (2014) “Liyan in the Cultural and Natural Estate”. Landscape Architecture Australia. Issue 139, 20 March. https://architectureau.com/articles/processfrom-the-other-side-liyan-in-the-cultural-and-natural-estate/ Zehr H (2005) Changing Lenses: A New Focus for Crime and Justice. 3rd ed. Minnesota: Hera.

Legal Materials Children, Young Persons and their Families Act 1989 (NZ). Young Offenders Act 1994 (WA).

7 Disciplinary Power or Colonial Power?

In the next two chapters we offer an alternative reading of settler colonial incarceration as sites of settler colonial repression and Indigenous refusal. We prefer the term “refusal” to “resistance” in this context because Indigenous responses to carceral power involve a greater collective degree of denial in relation to settler states’ moral, legal and sovereign authority to punish. Resistance may include this, we accept, but it also suggests a host of quite individualised or cultural forms of defiance that do not necessarily involve a rejection of the state’s moral rights. In Mohawk Interruptus, Audra Simpson describes the Mohawk people as a “precontact Indigenous polity that simply refuse to stop being themselves” (2014, 2): that is, a sovereign people. Anthropologist Carole McGranahan (2016, 320) maintains that [r]efusal is often a part of political action, of movements for decolonization and self-determination, for rights and recognition, for rejecting specific structures and systems.

It is “genealogically linked to resistance, but not as one and the same” (McGranahan 2016, 320). The focus on refusal unsettles ­taken-for-­granted assumptions regarding the nature of the prison experience derived from

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Euro-north American theory. We previously urged a “hermeneutics of suspicion” (Ricœur 1970; see Chap. 2) when assessing the applicability of Western critical scholarship to settler colonial societies, because they are limited in time and place, and lack universality. Research on the colonial prison suggests that Euro-north American understandings of the role of the prison offer a shaky foundation on which to construct a theory of carcerality under settler-colonialism.

Ruptures, Breaks and Difference Mainstream criminology, we have suggested, tends to take its cues from the experience of the social formations of Euro-north America. A prominent thread in Euro-north American criminological theory has been the rise of punitive populism and authoritarianism that has seen the reversal of social democratic values. Settler colonial policies towards Indigenous peoples have tended to rest almost exclusively on extreme and punitive action and a large degree of coercion. There was no gilded age of welfare-­ rehabilitation, liberal democracy or political consensus for Indigenous people. Social democratic values—for the white mainstream—have co-­ existed harmoniously with spatial apartheid. Indigenous people have never shared in the bounties of civil citizenship (see Chap. 5). It is against this background that we must frame discussion about Indigenous people and imprisonment and interrogate its standing as an exceptional state of un-citizenship and exclusion from the polity. While we support penal abolitionism as an ultimate objective, we maintain that this can only be meaningful within a decolonising process that transforms diverse sites of oppression. Contemporary understandings of the prison as a site of disciplinary power is in debt to the works of Foucault, for whom the prison, far from being a peripheral and extraordinary institution, was, in a number of critical respects, demonstrative of modern Western society. Prison and its kindred institutions (gaols, lock-ups, watch-houses, remand facilities, prisoner transport, detention centres etc.) also demonstrate power in settler colonial societies, but Foucault’s analysis provides only a partial—

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though valuable—lens through which to view carceral enclosure under conditions of settler colonialism. Foucault, in particular though his exploration of Jeremy Bentham’s “Panopticon” in his seminal text Discipline and Punish: The Birth of the Prison (Foucault 1995), provides a fertile language for visualising the scale, “spatial groundedness” (Legg 2007, 265) and architectural embeddedness, of disciplinary power. Of course, Foucault was by no means the first to identify that the increased disciplining and objectification of the subject facilitated the project of modernity. Marx, Durkheim, Simmel and Weber, amongst others, saw that an increasingly intensive “ordering of the soul” (van Krieken 1990, 353) was central to the transition from pre-modern to modern society. It is this revolutionary transition of course that gave birth to the new social sciences such as sociology, which came to understand society as a phenomenon “defined by rupture and difference” (Bhambra 2007, 875). This “temporal rupture” (2007, 875) distinguished modern society from its own agrarian past, while establishing its cultural difference (and implicit superiority) from the rest of the globe. This focus on rupture, break and difference, then using this formula to make sense of all social development, became a consistent thread in sociology of the Global North and its unravelling weakness from a postcolonial perspective. Through “temporal bracketing”, a postcolonial reading stresses the pervasive continuities between technologies of control over time for Indigenous peoples (see this book’s Introduction). For Indigenous peoples the settler state has always been, in quite a literal sense, the carceral state.

Social Oblivion Some contemporary research on the prison has been less concerned with what prisons are for, than on what they are like (Consadine, cited in Liebling and Crewe 2012); particularly how “the pains of confinement” (Crewe 2011, 510) are negotiated by inmates in situations of almost total powerlessness viz-à-viz the carceral machine. By dint of losing his freedom, the captive forfeits the powers of decision-making and autonomy

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that define citizenship in a liberal democracy (Sykes 1958). Erving Goffman’s (1961) work on the inner life of the prison as “total institution” succinctly illuminates the processes through which the inmate or prisoner receives a “social death”, administered through a range of rituals of humiliation and denigration that assign “inmate identity” and dehumanise the subject, leading to a “mortification” of the self. There is considerable agreement within criminological research that prisons should not be judged solely in terms of their effectiveness in deterring crime or reforming criminals, but rather in relation to their “expressive” and “communicative” character (Duff 2001). They exist to channel moral outrage, while reproducing and affirming the boundaries between order and disorder. Just as well for them because if they were judged in terms of their effectiveness in rehabilitating prisoners and preventing recidivism they would be condemned as failures (Walsh 2006). In Judith Butler’s (1993) terminology, condemnation to prison is a “performative” act, in that it reflects the power to translate will into action. The awesome spectacle of power matters as much, if not more, than the actual processes that the display of power initiates, especially so since punishment itself has become increasingly removed from the public gaze in Western societies. In modernity the prison becomes a secretive and opaque realm. John Pratt (2002, 54) observes how prisons became gradually invisible and spectral, a “hidden receptacle” for those deemed beyond the limits of civilisation. The prisoner became “steadily more entombed” and “removed from sight” (Pratt 2002, 55). Controlling and restricting communication between the inside and outside worlds is emblematic of carceral power. Rigid control of communication between “inside” and “outside” became one of the signal features of the prison. Prison visits, for example, are restricted and regulated, as the line separating the prisoner and the public became more tightly drawn. The prison takes on an exacting singularity as the dominant signifier of surveillance and containment, distributing pain in just measure. The interior world of the prison takes on increasing weight and density as it became further removed from the world “outside the walls”, insinuating itself into every corner of the subject’s body and mind.

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Imaginative Geographies of the Prison Yet, this very opaqueness creates meaning for us on the outside. Our lack of factual knowledge about the prison is more than compensated for by our imaginative knowledge of it. Just like postcolonial theorist Edward Said’s Orient, the prison lives within the collective imagination, as encapsulated in Said’s notion of the “imaginative geography”. Said (1978, 55) writes that the “objective space” (of a house for example) “is less important than what poetically it is endowed with…space acquires emotional and even rational sense by a kind of poetic process, whereby the vacant or anonymous reaches of distance are converted into meaning for us here”. We intend, following Said (1978, 55), to question the spatial ordering of the prison, and suggest that its “anonymous reaches” have no universal “meaning”: the prison imaginary is structured via a range of collective experiences, sentiments and values. Eriksson (2015, 79) notes that, countries differ in the extent to which prisons, and the people inside them, have been placed outside the moral considerations of the community in which they exist (see also Pratt and Eriksson 2013). These differences influence how daily life in the prison is imagined from without. Dominant political discourse flavours popular imaginaries of prisons and prison life. The punitive turn in criminal justice policy has driven increased prison building, but it has also shaped, and been shaped by, popular imaginings of prisons as “soft” and “holiday camps”. Paradoxically, the accomplishment of the prison as an opaque realm has served to weaken its legitimacy: the relative invisibility of its structures of oppression to mainstream society means it no longer acts as a catharsis for racist and other sentiments.

 ower and Penality (With and Without) P Knowledge The imaginary of the prison, derived from Foucault, as well other influential theorists of the Global North, may have limitations when transferred to the postcolony. Liebling and Crewe (2012) acknowledge that prisons are a Western invention, and questions related to the “purpose

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and value” of the prison are more contested when prisons have been imposed through colonial power “against the grain of local cultures and values” (2012, 899). Critical research and scholarship from the Global South increasingly warn against universalising the Euro-north American experience of modernity: does this apply to its regimes of punishment and control as well? There is strong evidence suggesting that, like other institutions of Western Imperialism, the prison was radically transformed in its passage to the colony. Imperial imperatives, rather than just correctional modernism, shaped correctional governmentality in the colony. Euro-north American histories of the prison remain rigidly tied to the penal establishments of the nineteenth century and their offspring. Incarceration outside of Euro-north American penalty receives scant attention; neither the Gulag, the Nazi prison camp, or the colonial prison (with the exception of the Australian Convict Colony—itself a distant annex of the British penal system) is discussed in the Morris and Rothman’s (1995) canonical The Oxford History of the Prison. Classical sociologies of the prison were valuable in demystifying the notion that prisons were a mass of atomised subjects; instead establishing that prisons were dynamic social systems with distinct cultures and structures, which evolved to manage the pains of incarceration (Sykes 1958; Crewe 2011). Garland and Young (1983, 15) maintain that the “penal realm is not a singular, coherent unit. It is a complex network composed of a variety of different institutions, practices and relationships”. Recently, Garland (2017, 23) has given further gloss to this argument: A founding principle of the sociology of punishment…is that penal phenomena are not to be understood as a simple reaction or response to crime, but instead have their own dynamics and determinations. Punishment is a social institution not an automatic reaction or a mechanical response.

This goes a fortiori in relation to the penal realm in the postcolony, where incarceration was driven by a range of demands created by dispossession, immigration, convict management and so on. A postcolonial approach, however, also questions the linkage between crime and punishment, and the role and status of the prison, as we detail in Chap. 8. It also places a question mark against the notion that one disciplinary domain,

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sociology in David Garland’s case, has the capacity to convey the depth and diversity of meanings associated with punishment and incarceration in the postcolony. As we have suggested, a post-disciplinary approach is required that works on multiple registers to convey the political, sociological, anthropological and psychological dimensions of the issue through the lens of holistic Indigenous standpoints. Indigenous epistemologies that have contributed to psychological analyses in Australia and Canada, for example, have brought to light the harm inflicted by colonisation. These developments in psychology have been given strength through the seminal work of Indigenous scholars/ practitioners such as Victoria Hovane, Tracy Westerman, Pat Dudgeon, Renee Linklater and Judy Atkinson. Their paradigm-breaking work conceptualises inter-generational trauma, grief and loss as a collective experience that links past and ongoing epistemic, cultural and physical forms of violence against Indigenous people. They focus on the inter-generational role of colonial institutions in threatening Indigenous lives against the role of Indigenous healing in building Indigenous strength and wellbeing. Caceral camps—both in their penal form and administrative forms (mission stations, reserves and boarding schools—see Chap. 5)—have been a key site of Indigenous trauma.

A Carceral State Popular imaginaries of punishment in the Global North remain in thrall to nineteenth century and early twentieth century Anglo-American places of confinement, where the prison attained master status as the signifier of punishment and the designated site for managing the criminal. While it remains the case that the prison only takes a small number of wrongdoers, it represents “justice” and the supreme symbol of punishment. Anne Worrall (1997) observes how much contemporary debate still assumes that penality is synonymous with prisons as the natural form of censure. The language of the “non-custodial”, “alternative” or “diversionary” options serves only to normalise prison as the ultimate destination for wrongdoers, the terminus of the justice omnibus. Even in, ostensibly, low imprisoning societies where imprisonment does not constitute the default

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option for sentencing—as it is in the USA—prison remains at the apex of the correctional pyramid, occupying its commanding heights; all criminal justice sanctions are enacted in its shadow. Multiple moral and symbolic narratives are woven into the material and institutional matrix of the prison; and the pains of confinement involve a mixture of physical and psychological degradation, and moral abjection. It is our contention that this narrative, along with discourses of penology and other modernist “sciences” on managing the criminal, is largely marginal to the study of confinement in settler colonial settings. In the following sections we present an alternative genealogy of incarceration under settler colonialism, based not on Euro-north American criminological perspectives but on radical currents in philosophy, critical Indigenous theories and postcolonial theory, which offer a radically different lens through which to view settler colonial confinement. We invite the reader to “reimagine” prison, less as the apex of a hierarchical justice pyramid, but as one link in a laterally concatenated archipelago of camps, designed to further the colonial project of Indigenous extinguishment (see Fanon 1991, 15).

Marking out the Space of the Camp Informed by Giorgio Agamben’s work, we maintain that his notion of “the camp” (1998) offers richer soil for cultivating theories of Indigenous incarceration in the settler colony than do Anglocentric histories and theories of the prison. For Agamben the camp, not the glittering metropolis, is the singular achievement and enduring legacy of Euro-modernity. The camp, “is the space that is opened when the state of exception begins to become the rule” (Agamben 1998, 168–169). Importantly, “selection” for the camp does not rest simply on judicial decision-making, but on a range of non-judicial constructs around morality, race, ethnicity, sexual orientation, dangerousness and difference. The notion of the camp is better suited to settler colonial enclosure than the prison. If prisons in the metropolitan centre can, following Foucault, be said to be places of correction, discipline and control, the prison in the settler colony can best be described, employing Agamben’s language, as zones of “exception” and “indistinction”. The camp has a “transitory logic”: where

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“notions of inside and outside…disappear into a zone of indistinction” (Diken and Laustsen 2002, 291). We believe this captures perfectly the nature of the imprisonment for Indigenous people in Australia, whose bodies have become signifiers of exception. Colonial power abolished the distinction between the normal and the exceptional (Diken and Laustsen 2005): zones of exception became default structures for managing the Other. Indigenous people are rotated or “cycled” (Baldry et al. 2015, 69) in and out of prisons, and mobilised into other sites of indistinction (hostels, shelters, bail facilities, refuges, lock-ups, psychiatric facilities, designated places) with dizzying monotony. So regular and repetitive is this carceral churn that prison statistics, focused on stock rather than flow, habitually undercounts its incidence (Anthony 2016). Detention in the camp is partially pursued to satisfy irrational demands for “abjection”, described by Julia Kristeva (1982) as the “horror” of the “in-between, the Other” (see also Hook 2012). Abjection demands expulsion from society and is often accompanied by visceral dread, repugnance and disgust (see also Fanon 1986). This is inevitably followed by demands for purification and the re-assertion of boundaries (Young 1992). The very presence of Indigenous people is often sufficient to excite fear and loathing amongst settlers, and feed demands for them to be taken somewhere else, anywhere else. Postcolonial and post-disciplinary criminology strikes a contrapuntal alternative to the popular opus of mainstream criminology. Instead of tracking the genealogy of prison, it traces the “camp” through its various “metamorphoses and disguises” (Agamben 1998, 73), of which the prison remains but one. It essentially unsettles the prison as the master signifier of carceral confinement in settler colonial society. The ubiquity of mainstream narratives on the prison “disguises” its lineage as a site of exception, one of a multiplicity of locations employed by the settler colonial state to store Indigenous bodies and erase Indigenous sovereignty. The weighty architecture of the prison, along with a gloss of legal practices, administrative technologies, popular narratives, mythologies and professional discourses—including criminology and penology—has simply fabricated an intricate mask. This fabrication makes the camp behind it invisible to the mainstream gaze. We argue that the fundamental nature of confinement has not altered much since early colonisation; it has simply found a new habitus in the prison assemblage.

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Ongoing Coercion: Bare Life The “state of exception” reduces Indigenous people in settler colonies to “bare life” where the boundary between the “inside” and the “outside” is indistinct (Agamben 1998).  They exist in a “carceral archipelago of oppressive institutions—whether they are physically confined by those institutions or not (Blagg and Anthony 2018). The settler state is incapable of providing anything more than “bare life” to Indigenous people, on either the “in” or the “out”. Indeed, this binary loses explanatory coherence in the settler colonial context. It cannot be taken as given, that the experience of being “inside” diverges radically from that of being “outside” for Indigenous prisoners, or that regimes of control are more oppressive on one side of the razor wire than on the other. This is notable in Australia’s Northern Territory, where the imposition of discriminatory control measures across up to 100 Indigenous communities, which we discuss in Chaps. 8, 9, 10 and 11, have dovetailed increasing violence towards Indigenous children and adults, including in welfare, schooling, health and penal, especially youth detention, settings. We imagine control in the settler colony as an archipelago of intersecting “camps” founded on what Sylvester (2006, 66) calls “bare life biopolitics”. The prison constitutes one link in a chain of camps. Foucault’s influential thesis: that the prison became the model for multiple sites of knowledge/power in modernity, requires recalibration in the settler colony, where the camp, not the penitentiary, serves as the template for kindred forms of institutional control over the colonised Other. As Diken and Laustsen (2002, 291) suggest, the “logic” of the camp, not the prison, filtered outwards in the settler colony, concerned not with discipline but extinguishment. It makes little sense, for example, to include Fremantle or Long Bay prisons in Western and eastern Australia, and exclude Palm Island—an island that was colonised to establish a mission to segregate Indigenous people from across Queensland for “civilising” and penal purposes—from any genealogy of the prison in Australia. In our research we have heard Indigenous prisoner voices, especially Aboriginal women, flip over the inside/outside dichotomy, describing the outside like a prison: where they face homelessness and over-policing, scrutiny from child protection workers, poverty, violence and racial exclusion.

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John Pratt (1994, 303) observes that the English Poor Law “less eligibility” principle—the notion that life on the inside should always be less desirable than on the outside—undergirded penal ideologies from the nineteenth century onwards. Like other legal principles and institutions of the “mother country”, it was crated up and shipped to the colony to provide a coarse moral foundation for colonial correctionalism. The thing is, though, that it became impossible to make bare life in the prison noticeably less eligible than bare life in other state institutions and in families crushed beneath multiple forms of colonial violence, including epistemic violence, the violent disavowal of Indigenous humanity and the brutal kidnapping of children. Settler colonial institutions were invariably bent towards the fulfilment of white manifest destiny irrespective of their function back in the metropolitan centre. They improvised a host of institutions to act as staging posts along the path to sovereign extinguishment; creating camps where black bodies could be corralled, and Indigenous mobility curtailed, or enforced. Biopolitics involved turning Indigenous bodies from sovereign subjects to subjects of white sovereignty and supremacy. The police lock-up, in particular, became a pivot for numerous forms of colonial control, classification, and dispersal of black bodies. Colonial practices generally were based on forms of biopolitics. “Natives” were classified, subjected to regimes of moral and physical hygiene, forced to be “decently” clad, exploited for their labour, shipped abroad, conscripted and indentured. Of course, the settler colonial regime was less interested in the Other’s body than it was in their land: settler colonial governmentality has combined both body disciplining and body exterminating practices where Indigenous peoples are concerned. Settler colonisers wanted Indigenous people gone (Wolfe 2006). Yet recent literature on the colonial project has, unsurprisingly, questioned the relevance of Foucault’s (1995) distinction between “spectacle” and “sovereign power”.

Provincialising Foucault There is now a coherent body of work questioning how well Foucault’s schema travelled to the colony. Research on the colonial prison in India under British rule offers a counterpoint to the Foucaultian

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stance that modern penalty is less focused on violent spectacle and more on shaping subjectivities. Colonial forms of sovereignty were more fragmented and complex, more reliant on spectacles and ceremony, and demonstrative and excessive violence, than the forms of sovereign power that had emerged in Europe after several centuries of centralizing efforts. (Hansen and Stepputat 2005, 5)

Colonial power was more concerned with imposing order than shaping consent and tended to rely heavily on repression. One consequence of this was that “sovereign power, justice, and order in the postcolonial states were from the outset partial, competing, and unsettled” (Hansen and Stepputat 2005, 4). Research on punishment in colonial India, for example, shows that colonial governmentality of the prison was “almost exclusively framed in terms of sovereignty”, with “disciplinary strategies… given only limited and equivocal attention” (Brown 2014, i). Furthermore, as Arnold (1994, 158) notes, “one can find abundant evidence of resistance and evasion in the Indian prison system and a whole network of power and knowledge over which the prison authorities exercised scant control”. The lack of hegemonic stability generated the need for multiple sites and disciplinary regimes where sovereign power could be displayed. One outcome of which is that in the colony the prison loses its uniqueness as the consolidated signifier of repressive order: instead, colonial power was communicated and disseminated through an extensive grid of settings, where micro-spectacles of difference confirmation, spatial demarcation and exclusion, were performed. What mattered was maintaining the Manichean divide between settler and native, not managing guilt and innocence, a fruitless exercise anyway as the native—habitually treacherous, incorrigibly sly and devious—was a priori guilty of something. Chris Owen (2016) cites one police officer as saying “every [Aboriginal] mother’s son is guilty”. Further, the inner-world of the colonial prison was not a homogenous site of discipline, but was spatially differentiated according to race. Racial hierarchies were safeguarded through the creation of different regimes for whites and the rest: “the European body maintained its privileged status even in

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confinement” (Arnold 1994, 170): Manichean divisions demarcated the colonial order of the prison. The interior spacing of prisons reflects racial difference—as its still does. Koori prisoners told Blagg et al. (2005) that, “if you’re black your down the back—and on your back” (153). The colonial order of things influenced how prisoners performed the “inmate identity”. As David Arnold notes in relation to the colonial prison in India: “the body of the ‘Oriental’ might be disciplined, but his ‘soul’ remained out of reach” (1994, 175). Agozino (2003), from an African perspective, criticises Foucault’s focus on the individual body as the site for punishment: in Europe’s colonial heart of darkness punishment was dispersed and generalised to the native population as a whole. In the colony one native easily stands in for another. Daily life within the colony is, Fanon suggests, strewn with obstacles, traps and chance encounters with repressive authority—there is a complete arbitrariness to being caught up in the net of colonial power when it rounded up the usual suspects. It is possible, therefore, to view the prison in the Global South as both an instrument of settler colonial rule and ongoing site of colonial contestation, where disciplinary power is not simply resisted but disavowed and denied jurisdiction.

The Penitent Soul Foucault tracks the relationship between punishment and modernity: whereas we are concerned with the relationship between punishment and modernity’s shadow. Here, its status as the supreme signifier of disciplinary punishment aimed at transforming “the penitent soul” or “target soul” needs to be interrogated (Foucault 1995, 46, 82). Foucault was interested in forms of power that penetrate the subject’s very body and absorb natural life in the calculus of power: the processes of “subjectivisation” through which modern populations bind themselves to power. Panopticon was founded on the belief that power is interiorised in and through the process of surveillance itself. Foucault describes the “gaze of power” as “an inspecting gaze, a gaze which each individual under its weight will end by interiorizing to the point he is his own overseer, each individual thus exercising this surveillance over, and against, himself ” (Foucault 1980, 155).

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As Edward Said (2000, 150) observes, Foucault saw that in the modern era, “there is an unremitting and unstoppable expansion of power favouring the administrators, managers, and technocrats, of what he called the disciplinary society”. Power is everywhere. In an oft-cited passage, Foucault (1981, 95) maintains that: “where there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power”. Foucault is posing the question: can there be an “outside” to power? Postulating that, “there is no single locus of great Refusal, no soul of revolt, or pure law of the revolutionary” (1981, 95). Such is the omnipresence of power, he intones, it is impossible to exist outside its technologies and controls. Central to Foucault’s thesis on technologies of discipline and surveillance is the power of “the gaze”, an idea he develops in The Birth of the Clinic (1973) in the form of the “medical gaze”. The “gaze” assumes critical importance as clinicians begin to assert hegemony over the body, which is an immobilised and passive entity in medical practice: this is given spatial expression though the clinic as a specific domain of power/ knowledge. Writers before and after Foucault have explored the nature of the “gaze” as a phenomenon that involves more than just looking and seeing. The gaze objectifies and fixes the subject. According to Ann Kaplan (1997), the “imperial gaze” infantilises, essentialises and trivialises the colonised people it fixes on. Not surprisingly it has been influential in framing feminist thinking in the work of Judith Butler (1988) and Laura Mulvey (1975) via the objectifying “male gaze”. Can there be an alternative gaze, however? One that looks back at racialised and/or gendered power? bell hooks theorised an “oppositional” gaze in which black people look back at power and challenge their objectification (hooks 1999): hooks suggests that there can be a subject counter-­gaze that subjects power to scrutiny. The scrutiny of the gaze works to disassemble the message of western rationality and strip away its façade of universality, equality and fairness. It forms the basis for what we called Indigenous refusal. Before addressing this issue in depth, and discuss refusal, we need to look in more depth at Foucault’s (1978, 143) important concept of “biopower”.

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Foucault and Biopower Foucault refers to the focus on the creation, maintenance and regulation of life as “biopower” or “biopolitics”. Theorising that the proliferation of techniques designed to safeguard the life of the nation also legislates the elimination of its opponents: the pre-modern power of the sovereign simply “to take life or let live” is superseded by governmentality that facilitates the power to “make” live or “let” die (Foucault 1978, 138). Biopower designates that which “brought life and its mechanisms into the realm of explicit calculations and made knowledge-power an agent of transformation of human life” (Foucault 1978, 143). Techniques of governmentality boost the capacity of the modern state to move beyond its own legal limitations by creating extra-legal spaces governed not by law, but by directing individual and collective biological life through social and scientific engineering, expert administration and everyday technologies of the self. If this kind of governmentality produces welfare and public health, its dark side produces the camp: that place set aside for life not considered healthy or morally worthy to be part of the national collective. It is modern “biopolitics”, Georgio Agamben asserts, that makes both the total domination of life and the concentration camp possible (1998, 71). Biopolitic is not a feature of one particular form of political organisation; it traverses totalitarian regimes and modern liberal democracies alike. Foucault acknowledges that because biopower involves sovereign power (Foucault 1978, 140) it is concerned, not only with he who would be made to live, but he who would be allowed to die, decisions increasingly requiring the input from the modern state in an array of institutional settings (medical, custodial, legal etc.). Through biopower sovereignty insinuates itself at the very juncture between life and death. The killing of others is motivated, and justified, not by hate but by the vision of an improved, “‘higher’ aim” (Foucault 1995, 11). For Foucault, disciplinary power dispenses with punishment as spectacle and achieves conformity through the routinisation of institutional discipline and control. Foucault’s shift of focus towards biopower demonstrated how these technologies became progressively more subtle and

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refined, effecting the progressive culpabilisation of the subject and the interiorisation of disciplines as the individual assumed greater responsibility for his/her interior world (Foucault 1978). Modern western society (Foucault knew no other) is, he claims, “a singularly confessing society” (1978, 59), suggesting that religious practice of confession was secularised in the eighteenth and nineteenth centuries. People were encouraged to confess to their innermost desires and sexual practices. These confessions then became data for social science, which used this knowledge to construct subtle mechanisms of social control. Thus, Foucault argues that modern confession acts as a form of power-knowledge; biopower simply adapts old confessional techniques of the Judo-Christian tradition for new purposes. The penitent soul becomes the disciplined subject of bourgeois society burdened by the anguishes of personal responsibility (continued contemporaneously by internalised strategies of “responsibilisation”, see Muncie 2006, 773).

Productive Biopower The narrative arc of western criminology describes correctional history in terms of the progressive refinement of such technologies of power, control and normalisation. Furthermore, according to Foucault, the techniques of biopower are not necessarily negative, but often productive (1978, 86). This is an important dimension of Foucault’s work and differentiates his approach from a long tradition in critical analysis stating the overwhelmingly repressive nature of power in modernity. What happens to biopower when states colonise space beyond Europe? As we argued earlier, numerous critics working within the non-European world have adopted many of Foucault’s linguistic turns and spatial metaphors. Yet David Gregory cautions that Foucault’s spacings are all “spacings within Europe” (Gregory 2004, 3, emphasis in original). In this respect, Foucault needs to be, in Chakrabarty’s (2002) terms, “provincialised” and his work moved from the centre of the explanatory universe. The colonised world has some beguiling similarities, in terms of the preoccupation with spatial grids and divisions, but could not impose these evenly across the colonial geography. The West simply could not, or would not,

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reproduce biopower on anything like the scale it did “at home”. In particular, it did not institute the “positive” elements for the colonised people that Foucault, correctly, views as part of the bourgeois contract between classes in the west in liberal democracy. Such luxuries were reserved for the colonists, rarely for the colonised. This required a greater reliance on crude spectacle and brute force. In Australia the spectacular public executions and floggings were administered to Aboriginal people years after such practices had been deemed cruel and unusual for whites (Finnane and McGuire 2001; see Chap. 5). In the colony there were different “legal geographies” in play (Harvey 1985), modern disciplinary techniques (including Panopticon and the reformatory) sat side by side with crude displays of physical violence. Here, prison was but one of range of sites where various colonial techniques of subordination and control were deployed. Aboriginal people (those who survived the genocide) were evicted from traditional lands and interned and concentrated in a variety of ways. Food was a key mechanism through which the settler state exercised control over the native population, at a time when Aboriginal peoples were being denied access to their traditional food sources (Rowse 1998). Aboriginal people became habituated to involuntary, collective confinement in a ubiquitous array of institutions, all employing roughly the same disciplinary techniques— separation of gender, splitting up of family, rationing of food, standardised time and work discipline, scripts of racial inferiorisation. These inter-linked spatialities were intended to create docile Indigenous bodies.

Necropower The power to make and sustain life in the settler colony existed in intimate proximity to the power to kill. Achile Mbembe, in a further refinement to Foucault’s notion of biopower, refers to biopower that authorises death as “necropower”: meaning technologies of control through which life is strategically subjugated to the power of death (Mbembe 2003). Necropower operates significantly with and alongside technologies of discipline, and the “power to make live”. It finds its extreme manifestation in colonial power:

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[T]he colony represents the site where sovereignty consists fundamentally in the exercise of a power outside the law (ab legibus solutus) and where “peace” is more likely to take on the face of a “war without end”. (Mbembe 2003, 23)

This Manachaen dialectic; where the imposition of liberal democratic law and politics is accompanied by lawlessness and death, neatly captures the process of settler colonisation, where the creation of white law accompanies the destruction of Indigenous Law and Indigenous people. White law unfolded simultaneously with the state of exception to it, in so far as the Indigenous population was concerned. White law came into the Indigenous world in company with rape, murder, mass poisoning, deracination, criminalisation and occupation. Further, the fact that Indigenous peoples did not have borders or standing armies that were recognised by the colonisers, or exercise sovereignty in the accepted European sense of the term, meant that they existed beyond the frontiers of established civilisation. They were therefore classed as “savages” who were outside of the terms and protections of civilisation. Mbembe (2003, 24) again stated: In sum, colonies are zones in which war and disorder, internal and external figures of the political, stand side-by-side or alternate with each other. As such, the colonies are the location par excellence where the controls and guarantees of judicial order can be suspended—the zone where the violence of the state of exception is deemed to operate in the service of ‘civilization’. (italics added)

Of course, this kind of suspension of judicial order and the state of exception were not just features of European colonies. The war of extermination carried out by Nazi Germany between 1941 and 1945 has chilling echoes of the colonial state of exception, where whole populations were considered subhuman and, consequently, normal notions of civilised warfare and the fair treatment of civilians simply did not apply. The glaring similarity between the “eliminatory logic” of settler colonialism in Australia and the Americas and Germany’s strategy of depopulating great swathes of Russian territory and transplanting ethnic Germans into the soil, has been recognised by historians such as Stephen Fritz (2011, 477).

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The sovereign right to kill is restricted neither by law or custom in the colony; colonists did not view the extermination of the native as a crime because, for them, the native was not human and therefore not covered by law (Arendt 1966). Biopower enters the colonial realm in the form of necropower, or what Agamben (1998, 86), in a further refinement of Foucault’s work, calls “thanatopolitics”/“thanatopower”, armed to the teeth and intent on destruction, as a necessary prelude to the implantation of white sovereign bodies (see Murray 2006). Furthermore, law has to be constantly protected through the routinisation of the “state of emergency”, as a normal feature of daily life. Geographical separation and the forced settlement of Indigenous peoples in camps of various kinds is a hallmark of the state of exception and the creation of bare life. As we noted earlier, Franz Fanon (1991, 143) recognised that colonial rule required the separation of coloniser and colonised into radically incommensurate moral and legal regimes. This spacialisation and compartmentalisation of life and bare life ensures that racially worthy life, the life of the settler, is nurtured through forms of biopower that builds hospitals, sanitation, education and employment: while the unworthy life of the native is the target of necropower— doomed to servitude and violence and ultimately disposable.

Bare Life and Necropolitics in Custody Indigenous people in custody have been subject to torture and brutal deaths, which has been documented by the Royal Commission into Aboriginal Deaths in Custody (1991), the Royal Commission into the Protection and Detention of Children in the Northern Territory (2017) and countless coronial inquests, including in relation to Ms Dhu (a 22-year old Yamatji woman from Port Hedland, Western Australia) (Western Australian Coroner’s Court 2016), John Pat (a 16-year old Yindjibarndi boy from Roebourne, Western Australia) (Johnston 1991) and Mulrunji Doomadgee (a 36-year-old man from Palm Island, Queensland) (Queensland Coroner’s Court 2010). In 2016, footage of Aboriginal children in Northern Territory’s Don Dale detention centre, being chemically gassed, restrained in mechanical chairs, hooded, bashed

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and forcibly stripped naked by guards, was broadcast nationally (Australian Broadcasting Corporation 2016). It prompted the Australian Government to announce the Royal Commission into the Protection and Detention of Children in the Northern Territory (2017), which found widespread, systemic harm in youth detention inflicted by guards on Aboriginal children, including indecent treatment of young Aboriginal girls, children having their heads smashed against concrete walls and floors and guards displaying sexualised behaviours (which is further addressed in Chap. 8). Yet despite countless inquiries, no criminal convictions have ensued for state officers responsible for deaths or torture of Indigenous people in custody.

Sovereign Power Mbembe’s (2003) contrapuntal, postcolonial reading of biopower as necropower unmasks the steep disjuncture between policies focused on population health and those focused on transforming Indigenous life into bare life. Foucault was looking backwards on a century or so of “soft hegemonic” power (particularly in post-revolutionary France) intended to build populations in the Global North and incorporate the white working class into the nation state: a process facilitated by colonisation which elevated the white subject above the colonial subject. His work, valuable though it is, needs to be read in tension with literature focused on the specific experience of incarceration in the Global South. Agamben (1998, 4) criticises Foucault for exempting discussion of the concentration camp and the structures of the totalitarian state as “exemplary places of modern biopolitics”. It is the “camp” and the state of exception that most represents the “biopolitical paradigm” (Agamben 1998, 78), which we explore in the following chapter.

References Agamben G (1998) Homo Sacer: Sovereign Power and Bare Life. D Heller-Roazen (trans.). Stanford, CA: Stanford University Press. Agozino B (2003) Counter-Colonial Criminology: A Critique of Imperialist Reason. London: Sterling.

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Anthony T (2016) “Data Gaps mean Indigenous Incarceration Rates may be even Worse than we Think”. The Conversation, 27 July 2016. https://theconversation.com/data-gaps-mean-indigenous-incarceration-rates-maybe-even-worse-than-we-thought-63044 Arendt H (1966) The Origins of Totalitarianism. New York: Harvest Books. Arnold D (1994) “The Colonial Prison: Power, Knowledge and Penology in Nineteenth Century India”. In D Arnold and D Hardiman (eds) Subaltern Studies VIII: Essays in Honour of Ranajit Guha. New Delhi: Oxford University Press, 148–184. Australian Broadcasting Corporation (2016) “Australia’s Shame”. Four Corners, 25 July. http://www.abc.net.au/4corners/australias-shame-promo/7649462 Baldry E, McCausland R, Dowse L and McEntyre E (2015) A Predictable and Preventable Path: Aboriginal People with Mental and Cognitive Disabilities in the Criminal Justice System. Sydney: The University of New South Wales. Bhambra G K (2007) “Sociology and Postcolonialism: Another ‘Missing’ Revolution?” Sociology 41(5): 871–884. Blagg H and Anthony T (2018) “‘Stone Walls Do Not a Prison Make’: Bare Life and the Carceral Archipelago in Colonial and Postcolonial Societies”. In E Stanley (ed) Human Rights and Incarceration: Critical Explorations. Oxon: Palgrave Macmillan, 257–283. Blagg H, Morgan N, Cunneen C and Ferrante A (2005) Systemic Racism as a Factor in the Over-representation of Aboriginal People in the Criminal Justice System. Report to the Equal Opportunity Commission and Aboriginal Justice Forum, Melbourne. Brown, M (2014) Penal Power and Colonial Rule. Oxon: Routledge. Butler J (1988) “Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory”. Theatre Journal 40(4): 519–531. ——— (1993) Bodies that Matter: On the Discursive Limits of “Sex”. New York: Routledge. Chakrabarty D (2002) Provincializing Europe: Postcolonial Thought and Historical Difference. Princeton, NJ: Princeton University Press. Crewe B (2011) “Depth, Weight, Tightness: Revisiting the Pains of Imprisonment”. Punishment & Society 13(5): 509–529. Diken B and Laustsen C B (2002) “Zones of Indistinction: Security, Terror, and Bare Life”. Space and Culture 5(3): 290–307. ——— (2005) The Culture of Exception: Sociology Facing the Camp. Oxon: Routledge.

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Duff R A (2001) Punishment, Communication and Community. Oxford: Oxford University Press. Eriksson A (2015) “Prisons and the Social Production of Immorality”. In A Eriksson (ed) Punishing the Other: The Social Production of Immorality Revisited. London: Routledge, 77–100. Fanon F (1986) Black Skin, White Masks. London: Pluto Press. ——— (1991) The Wretched of the Earth. New York: Grove Weidenfled. Finnane M and McGuire J (2001) “The Uses of Punishment and Exile: Aborigines in Colonial Australia”. Punishment and Society 3(2): 279–298. Foucault M (1973) The Birth of the Clinic: An Archaeology of Medical Perception. A M Sheridan-Smith (trans.). Oxon: Routledge. ——— (1978) The History of Sexuality, Volume 1: An Introduction. R Hurley (trans.). New York: Random House. ——— (1980) Power/Knowledge: Selected Interviews and Other Writings, 1972–1977. New York: Pantheon Books. ——— (1981) “The Order of Discourse”. In: R Young (ed) Untying the Text: A Post-Structuralism Reader. London: Routledge & Kegan Paul, 51–78. ——— (1995) Discipline and Punish: The Birth of the Prison. 2nd ed. A Sheridan (trans.). New York: Vintage Books. Fritz S (2011) Ostkrieg: Hitler’s War of Extermination in the East. Lexington: University Press of Kentucky. Garland D (2017) “Penal Power in America: Forms, Functions and Foundations”. Journal of the British Academy 5: 1–35. Garland D and Young P (1983) The Power to Punish: Contemporary Penality and Social Analysis. London: Heinemann Educational Books. Goffman E (1961) Asylums: Essays on the Social Situation of Mental Patients and Other Inmates. New York: Anchor Books. Gregory D (2004) The Colonial Present. Oxford: Blackwell. Hansen T B and Stepputat F (2005) Sovereign Bodies: Citizens, Migrants and States in the Postcolonial World. Princeton, NJ: Princeton University Press. Harvey D (1985) “The Geopolitics of Capitalism”. In D Gregory and J Urry (eds) Social Relations and Spatial Structures. Critical Human Geography. London: Palgrave. Hook D (2012) A Critical Psychology of the Postcolonial: The Mind of Apartheid. New York: Routledge. Hooks B (1999) “The Oppositional Gaze: Black Female Spectators”. In S Thornham (ed) Feminist Film Theory: A Reader. Edinburgh: Edinburgh University Press.

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Johnston E (1991) Report of the Inquiry into the Death of John Peter Pat. Royal Commission into Aboriginal Deaths in Custody. http://www.deathsincustody.org.au/sites/default/files/RCIADIC%20Report%20of%20the%20 Enquiry%20into%20the%20death%20in%20custody%20of%20John%20 Pat_1.pdf Kaplan A (1997) Looking for the Other: Feminism, Film, and the Imperial Gaze. New York: Routledge. Kristeva J (1982) Powers of Horror: An Essay on Abjection. Columbia: Columbia University Press. Legg S (2007) “Beyond the European Province: Foucault and Postcolonialism”. In J W Crampton and S Elden (eds) Space, Knowledge and Power: Foucault and Geography. Aldershot: Ashgate, 265–288. Liebling A and Crewe B (2012) “Prison Life, Penal Power and Prison Effects”. In M Maguire, R Morgan and R Reiner (eds) The Oxford Handbook of Criminology. 5th ed. Oxford: Oxford University Press, 895–927. Mbembe J A (2003) “Necropolitics”. Public Culture 15(1): 11–40. McGranahan C (2016) “Theorizing Refusal: An Introduction”. Cultural Anthropology 31(3): 319–325. Morris N and Rothman D J (1995) The Oxford History of the Prison: The Practice of Punishment in Western Society. New York: Oxford University Press. Mulvey L (1975) “Visual Pleasure and Narrative Cinema”. Screen 16(3): 6–18 Muncie J (2006) “Governing Young People: Coherence and Contradiction in Contemporary Youth Justice”. Critical Social Policy 26(4): 770–793. Murray S J (2006) “Thanatopolotics: On the Use of Death for Mobilizing Political Life”. Polygraph: An International Journal of Politics and Culture 18: 191–215. Owen C (2016) Every Mother’s Son is Guilty: Policing the Kimberley Frontier of Western Australia 1882–1905. Perth: University of Western Australia Publishing Pratt J (1994) “Understanding Punishment: Beyond ‘Aims and Objectives…’”. Current Issues in Criminal Justice 5(3): 301–308. ——— (2002) Punishment and Civilization: Penal Tolerance and Intolerance in Modern Society. London: Sage Publications. Pratt J and Eriksson A (2013) Contrasts in Punishment: An Explanation of Anglophone Excess and Nordic Exceptionalism. London: Taylor & Francis. Ricœur P (1970) Freud and Philosophy: An Essay on Interpretation. New Haven, CT: Yale University Press.

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Rowse T (1998) White Flour, White Power: From Rations to Citizenship in Central Australia. Cambridge: Cambridge University Press. Royal Commission into Aboriginal Deaths in Custody (1991) National Report. Canberra: Australian Government Publishing Service. Royal Commission into the Protection and Detention of Children in the Northern Territory (2017) Final Report. Vol. 1. Canberra: Australian Government Publishing Service. Said E (1978) Orientalism. New York: Pantheon. ——— (2000) Reflections on Exile. And Other Literary and Cultural Essays. New York: Granata. Simpson A (2014) Mohawk Interruptus: Political Life Across the Borders of Settler States. Durham, NC: Duke University Press. Sykes G (1958) The Society of Captives: A Study of a Maximum-Security Prison. Princeton, NJ: Princeton University Press. Sylvester C (2006) “Bare Life as a Development/Postcolonial Problematic”. The Geographical Journal 172(1): 66–77. Van Krieken R (1990) “The Organization of the Soul: Elias and Foucault on Discipline and the Self ”. European Journal of Sociology 31(2): 353–337. Walsh C (2006) “Is Corrections Correcting? An Examination of Prisoner Rehabilitation Policy and Practice in Queensland”. Australian and New Zealand Journal of Criminology 39(1): 109–133. Wolfe P (2006) “Settler Colonialism and the Elimination of the Native”. Journal of Genocide Research 8(4): 387–409. Worrall A (1997) Punishment in the Community: The Future of Criminal Justice. London: Addison Wesley Longman. Young J (1992) Rethinking Criminology: The Realist Debate. London: Sage Publications.

Legal Materials Queensland Coroner’s Court (2010) Inquest into the death of Mulrunji. COR 2857/04(9). Western Australian Coroner’s Court (2016) Inquest into the Death of Ms Dhu (11020-14). Ref. 47/15.

8 Justice in the Shadow of the Camp

We have suggested that the “camp” (Agamben 1998), rather than the modern gaol, penitentiary or reformatory (the privileged site for disciplining the penitent soul in Euro-modernity (Foucault 1995, 46)), provides the paradigm for understanding Indigenous incarceration. The camp becomes the model for enclosure in a range of institutions and its logic informs the way technologies of discipline have been dispersed (across prisons, ration stations, police lock-ups, mobile work camps, missions, boarding schools, domestic servitude, etc.) as bare life biopolitics. The camp, like the border (discussed in Chap. 2), is fluid. In its penal form, it can be a prison or remand or bail facility, or an annexe of a prison, or a police lock-up; it can be a makeshift and ramshackle affair, a temporary structure, hastily constructed and just as hastily demolished when the specific “task” is completed; it can be an island, like Palm Island off the coast of Queensland; in the Kimberley region of Western Australia a large Boab tree was used to house Aboriginal prisoners being taken to goal; and it can be the mobile camp of prisoner transport. In its “welfare” form, the camp can be a psychiatric ward; a group foster home or private residential child protection institution; a drug and alcohol shelter where an Aboriginal person in the Northern Territory is sent to for mandatory © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_8

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treatment; and a boarding school with white facilities and white students that receives Aboriginal children who are far from family, culture and Country and otherwise deprived of their own community schools. Equally, the camp can be located in places without walls or no place at all: sleeping rough on a footpath / sidewalk, being in the streets while being surveilled by police, expulsion from schools and refusal of hospital treatment. These are the contours of the camp where bare life existence looms large; stripping Indigenous people of their rights and dignity. Here the distinction between Foucault and Agamben becomes clearer: Foucault’s prison remained within the normal judicial order, while Agamben’s camp is outside the normal order and is governed by “martial law and state of siege” (Agamben 1998, 19). Discipline and Punish (1979) circumnavigates the perimeters of Euro-modernity, just like the convicts turning the courtyard in Van Gogh’s La Ronde des Prisonniers on the cover of the Peregrine edition of Discipline and Punish. It does not extend to the colony; there the camp goes beyond the stone walls of the prison. As the “absolute space of exception”, Agamben writes: the camp is “topologically different from a simple space of confinement” (1998, 19). The camp provides a space of “limitless sovereignty, the ability to kill, punish, and discipline with impunity”, furthermore it is “distributed among many forms of local authority” in settler colonial societies (Hansen and Stepputat 2005, 295). Appreciating this means, Hansen and Stepputat (2005, 297) suggest, we must shift our focus from viewing sovereignty as a set of rules and laws to a focus on the monopoly of violence: The key move we propose is to abandon sovereignty as an ontological ground of power and order, expressed in law or in enduring ideas of legitimate rule, in favor of a view of sovereignty as a tentative and always emergent form of authority grounded in violence that is performed and designed to generate loyalty, fear, and legitimacy from the neighborhood to the summit of the state.

The knowledge/power couplet is essential to Foucault’s thesis on disciplinary power. We suggest that the colonial encounter splinters and refracts modernist knowledge/power relationship in complex ways. Guha (1997) suggests, colonial governments insinuated a weak form of cultural

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hegemony that did little to incorporate the colonised in its consent-based social order. Rather, the colonised was and is governed through exclusion and subjugation. In the colony, “knowledge” of the Other was frequently framed through Orientalist representations which then “established a normative framework for Imperial practices” (Mirsepassi 2000, 18). Scientific Knowledges of Indigenous people was relegated as nothing more than superstitions of the primitive race that buttressed its own self-­ image as the civilised, rational, scientific and superior race.

The Colonial Matrix of Power Foucault’s work and the rich literature from the Global North on discipline and punishment is far from irrelevant, but needs, as we have stressed earlier, to be read “in tension” with epistemologies of the Global South. Literature on the Australian prison has tended to focus on the convict heritage and the history of transportation. Australian penal systems are marked by the legacy of the “convict stain” (Hughes 1986, 272), however it is not the heirs of convicts but of the Indigenous populations they dispossessed that have inherited the colonial system of punishment and confinement. A genealogy or archive of Indigenous Knowledge of incarceration must situate the prison within what postcolonial writers Anibal Quijano (2007, 168) and Walter Mignolo (2011, 8–9) call the “colonial matrix of power”. Settler colonialism was less interested in the bodies and souls of Indigenous people than it was in their land. All institutions were bent towards fulfilling the manifest destiny of European settler colonisation: uprooting native social order and implanting white social order (Wolfe 2006). It followed that Indigenous people would face confinement and exclusion across a range of social sites. This includes the so-called communities in northern Australia, created when they were herded together into fringe camps following their eviction from Country: Arriving on the fringe of various townsites, brought with it a lack of work, isolation from country, the introduction of social welfare entitlements, and citizenship rights which, in turn, served to increase surveillance and subjugation.

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The imperative for most non-Aboriginal people to police every Aboriginal person, created a cauldron of chaos, misery, loss of esteem and pride. It accelerated destabilisation and dislocation for Aboriginal people. (Dodson 1991, 174, emphasis added)

“Sovereign Is He…” Carl Schmitt’s assertion, “sovereign is he who decides on the state of exception” (quoted in Agamben 1998, 13), is useful in demarcating the role of the settler in instigating exceptional violence and oppression. “He” is both within and above law in his dealing with Indigenous people— “he” is law: imposing its coercive rules and denying protections. In this respect, the settler’s body replicates the body of the sovereign in Discipline and Punish, the violation of which sanctions spectacular displays of violence on the body of the Native. As Frantz Fanon (1991: 40) observes: “the settler makes history and is conscious of making it … he constantly refers to the history of his mother country, he clearly indicates that he himself is the extension of that mother country”. A signal feature of settler occupation is that sovereign power is embodied in the white settler. Accordingly, settler agency is constitutive of the colonial matrix of power and defining the relationship between the colonial state and the Indigenous inhabitants. It distributes power and knowledge—not in opposition to state power but in furtherance to it and with its sanction. Settler agency complements and enacts colonial administrator’s declarations of martial law, decrees to the army to shoot “the natives” (see Chap. 5) and legislation enabling torture in youth detention (see below). It is a productive vehicle for land takeover where the Eurocentric “polis” of the city or town is tested by the perceived “tyranny of distance” into the colonial interior. Such distance and its attendant encounters with the Indigene is best managed by the white settler and “his” embodiment of law. As pastoralist Nat Buchanan (Buchanan 1933, 117) declared when occupying the Australian interior, “Every [white] man is his own policeman”. The archipelago of camps (welfare, administrative, penal) in the colonies reflects the dispersal settler jurisdiction. Whether operating as missionaries, militia, prison guards, police watch-house keepers, child welfare

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agents, health care providers or social workers, white settler sovereignty is determinative. It traverses “hard” and “soft” power, demonstrating the continuity of colonial knowledge/power across techniques. The consistency of power in the face of method change (from “hard” to “soft” techniques) is not dissimilar to the experience of the Panopticon: its representation as a more humane, enlightened penal instrument (as opposed to the arbitrary cruelty of its predecessor) did not attenuate its coercive power—it sharpened it. Whereas torture had once been breath-­ takingly spectacular in its violence, the panopticon was a banal intervention—failing to shock its witnesses and in turn failing to protect its victims (see Arendt 1976 on the “banality of evil”). However, it was not the carceral panopticon that would represent the singular means or dominant signifier of legal control and exclusion in the colonies. The prison was and is simply one node connecting a spectrum of institutions, sites and makeshift camps—through which Indigenous people have been rotated, resettled and dumped, following dispossession. Hard power in the form of brutal violence could co-exist with or invert soft power of exclusion and soul-work, both within and outside of the prison and across varying landscapes. This is illustrated in another remark by Northern Territory pastoralist Nat Buchanan (1933, 117), when, referring to the “impracticality” of imprisoning Aboriginal people in the process of land takeover, he stated, “if no punishment were inflicted [by colonising  settlers] it would have been impossible to settle country”. However, pastoralists would vacillate between killing Aboriginal people and sparing them for the purpose of putting them to work on their cattle stations, demonstrating that within the “state of exception”, Indigenous people would be unpredictably subject to exterminatory and assimilatory techniques of the settler. This continues today as police or settler pursuits of children on bikes—running them down—is regarded by them as more effective than leaving it to the courts of law (see e.g. Tranter and Anthony 2019; Anthony 2013, 182). As Joanne Sharp (2009, 59) argues: [W]hile it is convincing to argue that panopticism has become dominant in western societies, under colonialism the ruling powers still continued to use spectacular forms of power (such as publicly violent punishment) alongside the subtleties of a disciplinary landscape to maintain control.

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Brutal repression co-existed with ritual and symbolism in the exercise of Imperial authority (Comaroff and Comaroff 1993, xvii). The co-­ location and inversion of these techniques was given expression at Roebourne prison in the remote north-west of Australia. Designed by British architect G Temple-Poole and opened in 1886, the prison has an octagonal design with a central “inspection house” and inmates stationed around the perimeter. Its distributive spatiality had the hallmarks of the classic Benthamite panopticon. However, colonial realities bent the octagon out of shape, until it became a spatial expression of colonial hierarchy. White prisoners were housed close to the inspection house in, relatively, comfort. “Asiatic” peoples were housed in the next section, and finally Aboriginal prisoners were kept chained up 24 hours a day in a long section of their own. They were chained when they were taken out to do heavy work developing colonial infrastructure; they were also chained by the neck when being taken hundreds of kilometres from their homes by police, even as witnesses. The Roebourne prison demonstrated how colonial projects of dispossession frequently shaped penal space. It is also a microcosm for the governance of colonial spaces beyond the prison: in which Indigenous people are governed through the unpredictable (il) logic of the settler.

The State of Exception The settler both embodied “law” and claimed the state of exception to it, suspending its immediate validity while cloaked in law’s legitimacy. The tension between law as “universal, formal and rational” on the one hand and the “absolute sovereignty of the state” is central to European law (Hussain 2003, 7). Settler colonisers act to valorise the existence and superiority of European judicial order, while placing themselves outside its restrictions and strictures. Schmitt’s discussion of this point is worth noting: Order must be established for juridical order to make sense…Therein consists the essence of State sovereignty, which must therefore be properly juridically defined not as the monopoly to sanction or to rule but as the monopoly to decide. (Schmitt, quoted in Agamben 1998, 17)

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Indigenous people were subject to white law and exempted from its protections as well as, absolutely, exempted from the power to decide its terms. Morgensen (2011, 53) notes: “Western law incorporates Indigenous peoples into the settler nation by simultaneously pursuing their elimination”. Although, it would be more accurate to say that Indigenous people were incorporated directly into the state of exception as bare life, rather than into law as such (Thobani 2007). As we have suggested at several stages, Indigenous peoples tend to receive a diminished and impoverished version of the law (sans-justice)—a bare life version of services and policies—reflecting their status as the exception across a range of sites (health, policing, education, housing, etc.). As Tedmanson (2008, 148–149) argues, Indigenous people, detained in a diversity of camps: [D]welled in a blurred realm of not being fully human, not citizens but not ‘outside’ the law because they were defined and controlled by it. They lived in ambiguity between un and lawfulness—between in and outside—they were the ‘other’ and the ‘exception’, which proved sovereign rule.

The state of exception applied to Indigenous people across a diversity of sites, it remains mundane, banal and so pervasive it has become virtually imperceptible and certainly unremarkable. The very spaces in which we live, our gardens and our houses, are sites of exception; living in them as tenants or proprietors under exclusive titles, most Australians daily render Indigenous life as homo sacer, blithely acting out the violence that constitutes the secret heart of the colonial sovereign state. (Bignall 2014, 38)

The Point of Indistinction and the Threshold Weighing up Carl Schmitt’s famous aphorism on exceptionalism, Agamben (1998, 17) remarks: “[t]he paradox of sovereignty consists in the fact the sovereign is, at the same time, outside and inside the juridical order”. Agamben notes “the sovereign is the point of indistinction between violence and law, the threshold on which violence passes over into law and law passes over into violence” (1998, 25). He then describes

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the “sovereign sphere” as “the sphere in which it is permitted to kill without committing homicide and without celebrating a sacrifice, and sacred life— that is, life that may be killed but not sacrificed—is the life that has been captured in this sphere” (1998, 53, italics in original). Homo sacer, is unworthy of sacrifice, “yet he may nevertheless be killed by anyone” (1998, 67). This sovereign power begins with the creation of “bare life”. He notes that the Jew in Nazi Germany became what he called the “negative referent” (1998, 68) for biopolitics—the cancer that had to be expunged in order for the healthy society to flourish. He is a visible instance of one who can be killed without this being a crime: homo sacer. Furthermore, Agamben suggests the act of killing takes place outside the moral spheres of religion or law, but is entirely contained within, and justifiable by, biopolitics. Here, Agamben implicates biopolitics in the exterminatory practices of European fascism, which, as Bauman (1991) observed, presented extermination in largely public health terms. According to Bauman (1991, 27), the diseased “lice” were cleansed from the body of the racially pure nation, once the Jew, gypsy, homosexual, had been placed beyond the moral universe and delivered to the camp. Biopolitics and its ideology of genetic determinism Otherises Indigenous populations to pervade the zones of legality and exceptionalism. It is implicated in the criminal justice system that bears the Lombrosian legacy of criminalising according to racial traits. Founding Italian criminologist, Cesare Lombroso (2006 [1876]) cast long shadows on the settler colony where Indigenous people were criminalised not for their behaviour but for their identity. Today, Indigeneity remains a risk factor across a range of assessments: in community corrections, bail ­applications, prisons and parole. Staples (1975, 15) states that criminology’s race models, which can be traced to Lombroso, serve to oppress Indigenous people to regulate the colonial relationship. The oppression takes place in the legal zone of the courthouse and the exceptional zone of torture chambers, such as Don Dale (Northern Territory) youth detention centre where Aboriginal youth were subject to Guantánamo Bay-­ style techniques.

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The Shadow of the Camp While neither Foucault nor Agamben confront colonialism in any depth, the architecture of their work supports a critical reading of settler colonial history as one founded on sovereign power and the politics of biopower. Agamben traces homo sacer back to antiquity, but also recognises that the “camp” is a modern phenomenon, created by colonial power. He points to the Spanish suppression of popular insurrections in Cuba in 1896 and the concentration camps into which the English herded Boer non-­ combatants (Agamben 1998, 95). “What matters here”, he writes, is that in both cases, a state of emergency linked to a colonial war is extended to an entire civil population. The camps are thus born not out of ordinary law (even less, as one might have supposed, from a transformation and development of criminal law) but out of a state of exception and martial law. (Agamben 1998, 95)

Agamben draws on Hanna Arendt’s work; since it was she who artfully teased out the connections between European totalitarianism and European colonialism; the latter in many respects the blue print for the state of exception and bare life in the former. Her study The Origins of Totalitarianism (1966) radiates truth regarding the precariousness of existence for those who are “no longer citizens of any sovereign state” (1966, 372). For them, Arendt (1966, 296) suggests (prefiguring Agamben’s thinking) there is no correlation between this condition of “complete rightlessness” and any actual behaviour or actions by the rightless individual. What has taken place is that the rightless belong to no c­ ommunity, “no law exists for them” (1966, 296). This is the essential feature of the concentration camp. Un-people are there not because of what they have done, but because of what they are, or are not. It is no accident then that the camp originated in the colony where such demarcations were a part of colonial governmentality. From there it was transferred to the European homeland. As Klaus Mühlhahn (2010, 543) observes: Global connections and transfers moved the concentration camp from the European colonial domains to the European continent itself where the implementation of those practices facilitated the shift to total war and also helped shape a new brutality.

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Indigeneity as a “Transit” Declaring a state of exception and placing the Other beyond the protection of law, but still subject to sovereign power, has been a consistent strategy by the settler colonial state for centuries. As recently as 2002, Assistant US Attorney General Yoo, in his infamous “torture memo”, employed the category of homo sacer to justify torture in Guantánamo Bay. Yoo drew an analogy with the treatment of the “Modoc Indian Prisoners”, who, while fleeing their reservation in Oregon to return home to California, were detained as prisoners of war (Bickford 2016, 197). This followed a failed rebellion in 1873 (many were incarcerated for close to 40 years, their leaders executed) who were denied the protection of law by a military commission (Byrd 2011). Thus, Byrd (2011) argues, Indigeneity functioned as a “transit”, creating a precedent and method for US imperialism at home and abroad, one that practised democracy and upheld the rule of law for the white mainstream while denying democracy and law to the Other. To summarise: postcolonial criminology draws attention to the ways colonial binaries function to marginalise the experience of Indigenous people. Rigid spatial, geographic dichotomies of penal institutions in the literature of the Global North, such as being “inside” or “outside” confinement for example—are essentially Eurocentric cartographies, formed on the experience of the Euro-north American subject. It advances a notion of citizenship through which freedom and imprisonment constitute radically incommensurable states of existence and identity. However, social statuses that would normally be viewed—through a Eurocentric lens—as constituting discrete universes (expressed in the binary of “free” (in the community) or “unfree” (in prison)), need to be redefined to accommodate the fluidity, and arbitrariness, of, confinement in the settler colonial prison camp. Postcolonial criminology focuses, instead, on the routinised nature of oppressive controls, their ubiquitousness, the way they dynamically intersect with a cluster of camps, bordered zones, detention facilities, exclusionary places, reserved for those who cannot be accorded normal “freedom”: those against whom “our freedom” needs to be defended.

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Experiences of the Criminalised and Colonised—Shame, Pain and Identity Rather than seeing imprisonment in the colony, then, as an extraordinary event, where someone is excised from, or cast out of, society (albeit temporarily), prison remains but one of a network of routine and quotidian sites of colonial subordination and Indigenous resistance. It is not surprising then that Indigenous people do not create “inmate identities” in response to the social subjection of imprisonment. Rather, they retain their cultural identities and refuse to legitimate colonial identities of existing “inside” or “outside” prison. For many Indigenous people in Australia, prison is all pain, no shame. It does not carry the same stigma within the Indigenous domain to be incarcerated in a white gaol (Blagg 2016). One’s status in Indigenous society is not threatened by involvement in the white justice system. Prison can be a place for acquiring some of the contemporary “rations” of white society: food and medical services; various kinds of medications; meeting with kin; conducting family business; taking a break; respite from community conflict; drying out. For some Indigenous women it can be a refuge from family violence (Blagg et al. 2018), although it also threatens relationships with children and undermines their capacity to care for family (Anthony et al 2020). Further, prison involves significant degrees of separation from place. As Reed (2003, 10) suggests, “the experience of loss may be at the centre of gaol life” for Indigenous people in settler colonial prisons, while the degrees of deprivation differ only in degree rather than in kind from those experienced on the outside. Furthermore, Indigenous people are not “outside” their own cultural domains when “inside” the prison. They do not leave their culture at the prison door. For Indigenous prisoners from towns and cities, prison may be places where cultural protocols are normalised because they are a prominent population in prisons, unlike on the outside. Within prisons, there is a strong cultural identity among Indigenous prisoners and, at least among Indigenous women, a sense of shared experience and respect for cultural conventions (such as listening to Elders). While in prison, Indigenous people may, paradoxically, be freed from some of the constant battering from white settler society that governs their daily interactions: as well as the violence, homelessness and poverty facing Indigenous communities fractured by the impact of colonial violence. This is not to suggest that

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prisons are not places where violence occurs, hierarchies (including racial ones) are imposed, charges are laid and fines imposed (for matters as petty as not making one’s bed) and disputes occur—they absolutely are these places. This is also not to understate the fact that many Indigenous people are imprisoned hundreds of kilometres away from family, community and Country. The threat of prison is not a deterrent for most Aboriginal people. Indeed, a postcolonial criminology problematises the notion of deterrence because it assumes that there are ways that Indigenous people can avoid crimes when often they are criminalised for being themselves. The operation of systemic racism in the criminal justice system being such that they can be arrested for sleeping on a train, gathering in public, not paying a fine or reporting a crime. What we suggest, however, is that shame is not a prevailing concern. A Northern Territory Coronial Inquiry into the deaths of several Aboriginal women by their Aboriginal partners reflected thus on the threat of incarceration: “the ‘public denunciation’ attendant on a sentence of imprisonment seemed of no effect. There seemed no shame in going to prison” (Northern Territory Coroner’s Court 2016). This is not to suggest that prison is not feared: with high levels of violence within prison walls, deaths in custody and racial taunts by guards. In our interviews in New South Wales prisons, conducted also by Wiradjuri woman Gemma Sentance and Dharug woman Michelle Toy, the Aboriginal women conveyed that they do not feel ostracised by their imprisonment and often see their sentence or remand as flowing from systemic rather than personal wrongs. What the Aboriginal women told us, however, related to their concerns on the outside: their children being taken by the state, homelessness, unemployment and addiction relapse because of the lack of supports. For whites, ownership of cultural capital is restricted to membership of civil society: one goes into “deficit” when excised from society. In the board game Monopoly (as in life) a stint in gaol means temporary disenfranchisement from the community of players (before returning to the game of accumulation). Aboriginal Australians, however, are not playing monopoly. Instead, prison is an extension of their broader disenfranchisement in settler colonial society. At the same time, their cultural obligations and reciprocal relationships often continue while inside the prison walls.

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Not Playing Monopoly The idea that prison can offer Indigenous people enclaves for the generation of a relatively autonomous cultural milieu, rather than just “adaptive”, survival oriented, prison subcultures where mainstream values are modified or inverted to protect the subject against corrosive scripts of moral condemnation, may seem contentious. However, viewed from within a framework of colonial power and resistance, prison is but one institution of involuntary confinement amongst many: and not necessarily the most destructive when compared to the damage to the Indigenous collective by missions, residential schools and orphanages that were deliberately designed to destroy Indigenous family life. “Kill the Indian in the Child” was the saying in Canada: “Kill the Indian, Save the Man” in the USA, as a justification for child removal to, so called, residential schools where Indigenous children were forcibly, often violently and abusively, “assimilated”. Because assimilation was seen to be in the best interests of Indigenous children (and a reflection of our “tolerance”) it could be carried out in an uncompromisingly brutal fashion, the assimilationist ends justified the means. Prisons thus do not have a monopoly on disenfranchisement, nor represent a temporary confinement to the punitive apparatus of state power. Indigenous experiences of prison imitate their experiences of the outside where they are too exposed to the state’s punitive arm: over-policing, denial of the right to parent and bare life conditions. At the same time, Indigenous people in prisons, like on the outside, do not waste away, but enact culture and identity through “refusal”: “simply refus[ing] to stop being themselves” (Audra Simpson 2014, 2).

 ones of Exception for Aboriginal Children: Z Bare Life in Prisons The zone of exception in youth detention centres in the Northern Territory of Australia is marked by torture and brutality. The treatment of Aboriginal children in prisons is not a mere diversion from legal rights available in policy and protocols, it is a violation of the norm afforded to

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humanity (see Bauman 1997). The guards committed these acts on Aboriginal children without opprobrium, and in clear sight of CCTV cameras, their peers and seniors. Where torture was not otherwise provided for in legislation (and indeed it was, including by legalising exceptional acts of hooding and mechanical restraints), guards flagrantly breached the Youth Justice Act (NT), domestic juvenile detention standards and international human rights conventions on the premise that they were morally right. They continued to maintain this position, devoid of contrition, in front of the Royal Commission into the Protection and Detention of Children in the Northern Territory (2017) (hereafter “Royal Commission 2017”) that investigated these breaches. They did so with impunity. All the while,  Aboriginal boys and girls were dehumanised through being segregated in “cages” for 23 hours per day, treated like “dogs”, denied food, water and basic hygiene and forcibly stripped naked by guards; they were reduced to bare life (Blagg and Anthony 2018, 267; Anthony 2018). Their cells smelt like sewage, were dark, filthy, lacking airflow and oppressively stifling (Voller 2016, 680; Hunyor 2017, 1487). Aboriginal children in Northern Territory detention had restricted contact with other people, including other children in detention, their family and even the guards would not respond to their cries for help (AD 2016, 615; Voller 2016, 681). They would be sent thousands of kilometres away from Country, home and everyone familiar to them. Officers tormented Aboriginal children by telling them their “family did not really care” about them and refused them phone contact and visits as punishment (Voller 2016, 688). They were also not allowed to attend funerals and sorry business when family passed on. This resulted in dislocation from family, community and culture. Their status as bare life was put on display by the guards who would swear at Aboriginal children, calling them “stupid black cunts”, “camp dogs”, “oxygen thieves”, “waste of space”, “little black poofters” and “fucking sluts”, including in conjunction with physical abuse and threatening acts (Fattore 2017, 1000; Zamolo 2017, 1396; Kelleher 2017, 1547; Tobin 2017, 1782–1783). The guards and teachers in prisons would prohibit the Aboriginal children from speaking in language and ridiculed them for not speaking English properly (Coon 2017, 2725–2726; Tasker 2017, 1113; Voller 2016, 714).

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The Royal Commission (2017) heard evidence of guards bashing Aboriginal children, smashing their heads against prison walls and floors (Turner 2017, 923; AU 2017, 8; Voller 2017, 2666; Hamburger 2016, 384; Engels 2017, 3578; Kelleher 2017, 1573; Middlebrook 2017, 3365). Violence in youth prisons included gassing children using chemical weapons such as CS gas which burnt children’s eyes and throats. Dylan Voller (2016, 708) described its effect: I thought I was going to die. My heart was racing because of the tear gas. My eyes were burning. I couldn’t hardly see properly… My heart was racing because I didn’t know what was going to happen next.

Shackled and Restrained In the Northern Territory’s Don Dale Youth Detention Centre, Aboriginal children were shackled to restraint chairs with their hands, arms, ankles and waists mechanically restrained while hoods were placed on their head and tightly tied around their necks for hours. Dylan Voller (2016, 712) expressed to the Royal Commission the panic attacks and breathing difficulties he experienced on the chair: “My body just shut down”. He feared for his life because he viewed that there was “no responsible person there” to draw the line when his pain became too great: “I was defenceless at that time. Felt like there was nothing I could do… I was telling them the whole time that it was hurting… They didn’t care” (712). The fear and shame endured by Aboriginal children in detention was not only in highly violent episodes, but also in everyday activities such as taking a shower and going to the toilet. Voller (2016, 684) told the Commission it was “scary” having an officer “watching you going to the toilet or when you are having a shower”. Children were strip-searched and at times pat searched naked on a regular basis. This included young Aboriginal girls who were forcibly stripped by up to six white male officers who would cut off their clothes for non-compliance (AN 2017, 9). AN (2017, 9) described one occasion:

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A large group of guards picked me up…and threw me face down… They then used the Hoffman knife to cut off all my clothes including my bra and underwear. I was fully naked and I felt real shame with all those men in the room.

These conditions and systematic abuse maintained Aboriginal children in a state of “bare life” (Agamben 1998). They were punished beyond the boundaries of juridical punishment. The normal operation of the law and the rights afforded to human beings was suspended for these young captives. Where violence and torture in detention was legislated (as it sometimes was), it was done so with reference to “emergency conditions”. The Royal Commission (2017, 9) nonetheless noted that mistreatment of children in detention was “systemic”. It is also a fallacy to talk of normal laws applying to both Aboriginal and non-Aboriginal children in Northern Territory detention as they are places set aside for Aboriginal children, who constitute 100% of its population (McDonald 2018). The torture and violence in detention was not hidden away but politicised to give the sovereignty of the state its raison d’état (see Agamben 1998). The Northern Territory Government, following the gassing of the children in the segregation unit in youth detention in 2014, described the children affected as “the worst of the worst” and “ratbags” (Elferink 2017a, 3139). The Chief Minister, Adam Giles (2017, 3280) said publicly that if he were the “Prisons Minister” he would dig a big concrete whole and put all the bad criminals in there. Right, you’re in the hole, you’re not coming out, start learning about it. I might break every United Nations Convention on the rights of the prisoner, but get in the hole.

These public proclamations enabled the government to define and control boundaries of exclusion and inclusion. Ultimately, however, sovereign power is vested in the guards in Northern Territory youth detention centres. The Royal Commission heard testimony that guards had the power to give and take life, with little oversight or accountability. These power relations did not end at the prison gate, but penetrated the walls of youth detention, where The Camp on the outside replicated power relations between the sovereign and the Indigenous Other inside prisons.

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 he Camp Outside Prison Walls T in the Northern Territory The evidence presented in the proceedings of the Royal Commission reveals how The Camp transcends prison walls and subjects the Indigenous Other to zones of exception. In the Northern Territory, Aboriginal people are subjected to damaging conditions guarded by police, welfare officers and government business managers. The disempowerment of communities and growing numbers of suicides among Aboriginal young people is part of the ongoing legacy of the Northern Territory Intervention (hereafter “the Intervention”) since 2007 (Gibson 2017). The Intervention restricted the rights of Aboriginal people living in 73 prescribed ­communities and town camps across the Northern Territory—a number that has increased to approximately 100. The circumstances leading up to the Intervention are discussed in Chap. 9. Restrictions imposed on Aboriginal people under the Intervention applied to their rights to social security, to alcohol, to computers (due to restrictions on viewing pornography) and to the management of their land. Police were given extended powers to enter houses and seize property without a warrant; medical staff could force Aboriginal girls to take contraceptives and Federal government business managers seized control from Aboriginal community councils. These restrictions and powers were exclusively applied to Aboriginal people and were extraordinary laws. The Intervention, and its controls, turned communities into prisons where Aboriginal homes became cells—capable of being raided without a warrant, subject to child protection orders and a site of police violence. In 2018, an Aboriginal woman in the Northern Territory town of Katherine was arrested for breaching a domestic violence order because she was drinking in her home. The police entered her home as part of a domestic violence “compliance check” and in the absence of any complaint (Ellen 2019). Alayawarre woman and Chairperson of the Lowitja Institute for Aboriginal and Torres Strait Islander Health Research, Pat Anderson, gave evidence to the Royal Commission that the experience of Aboriginal youth in detention was not sui generis. Rather, it was a continuum of the experience of Aboriginal children and adults under the Intervention policy. She states that the racist legislation and accompanying ideology that

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Aboriginal people were a problem has produced a “general moral decay” that has allowed children being put in hoods and restraint chairs (Anderson 2016, 164). She stated that the “disempowerment” and “appalling” (2016, 149) treatment of Aboriginal people living under the Intervention culminated in the torture of Aboriginal children at Don Dale Detention Centre. The policies and practices of the Intervention were an extension of nineteenth and twentieth century Aboriginal Protection Acts and the Stolen Generations (the systemic removal of Aboriginal and Torres Strait Islander children, see Read 1982) which sought to assimilate and subordinate Aboriginal and Torres Strait Islander Australians and control their movements, residence, culture, language, money and family (Gibson 2012, 66). The Intervention was directed at removing Aboriginal people from Country, forcibly acquiring Aboriginal land as leasehold, making it more difficult to practice culture on Country (including due to policing surveillance), diluting bilingual education, abolishing self-governing Aboriginal councils, circumscribing the functions of Aboriginal-owned Night Patrols, and taking Aboriginal children out of the care of their families and communities. These policies were implemented with punitive force: if Aboriginal children missed school their parents’ income would be entirely managed by the state or cut off; if Aboriginal families were impoverished their children could be taken from their care; if alcohol was found in a car that car would be confiscated, and if communities refused to lease their land their housing needs would not be met (see Anthony 2009; Anthony and Blagg 2013). There were no legal rights for Aboriginal people under this regime, only bare life.

F ear, Loneliness and Trauma: The Prisons Without and Within Aboriginal children who had been forcibly taken into state care (residential and foster care) and away from their parents, since the Northern Territory Intervention, told the Royal Commission stories about their fear, loneliness and trauma. They were taken far from family and Country

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where they were not able to receive visits or go home (CJ 2017). Siblings were usually separated, and children were given no explanation or warning about the removal and separation (DB 2017; AI 2017a, b; DM 2017). Some children were moved around to over 20 state care placements (DM 2017). One Aboriginal child explained the feelings of removal: “my heart was just crashing to pieces” (DG 2017b). Another young person, DB (2017, 2), said, I was scared and crying and I knew I was being taken away from Mum and Dad. It was a terrible day and the worst experience of my life.

The main desire expressed from children in state care was their wish to go home (CL 2017). They wanted to return to their family who they “grew up with” (DB 2017, 5) and this denial made them feel like the “odd one” (DB 2017). One young person said, the foster carers were not related and “they treated me differently and I didn’t belong there” (DB 2017, 5). A common response, therefore, was for Aboriginal children to run away in search of their family. But they were often pulled up and punished by police and their foster carers, including by being belted (DM 2017). Other children self-harmed in response to the trauma and pain from being taken from their parents (DG 2017a). Young people told the Royal Commission stories of abuse, the denial of food and the shame of being watched in the shower while in state care (DM 2017; DO 2017). As DG (2017a, 8) put it, being taken from families makes it “really hard [for children]… to live in their life”. These emulate the stories of children in detention, but these  Aboriginal children need not come under the juridical realm of punishment to experience segregation and confinement. Aboriginal children taken from their families by the Northern Territory Government, including physically dragged by the Northern Territory police or child protection workers, were not made to feel like real children. This was a sad irony since the protection of children from abuse was the casus belli for the Intervention (discussed in Chap. 9). One child stated: “I like welfare to actually—actually look at their self and think of their self just like they would treat their own child. Doesn’t matter what colour you are” (DG 2017a, 8). Children instead were treated harshly and lost their family and sense of belonging. One Aboriginal young person stated,

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“I don’t have a relationship with my mum or dad. I haven’t seen my brothers in years. … I feel like I had to make my family for myself, and the kid shouldn’t have to do that” (CJ 2017, 9). The effect of the removals was described lucidly by one child: The decision to remove us from our Mum and Dad destroyed our family. I know that my brothers and sisters have also all suffered because of it. I notice with Dad that whenever I talked about the past or about what happened my brothers and sister are doing he puts his head down and looks real upset. I know he feels broken because of what happened. (DB 2017)

The state of exception goes beyond judicial or administrative decision-­ making in the Northern Territory, it is based on a range of non-judicial constructs around morality, race, ethnicity, dangerousness and difference. The notion of The Camp is better suited to settler colonial enclosure than the prison. Indeed, the segregationist practices have been felt across the Northern Territory—whether it is segregation to another land, family, residential institution or detention centre—and the restriction of rights is not contained to prisons—it is experienced by all Aboriginal people in the Northern Territory as well as other settler colonies.

References Agamben G (1998) Homo Sacer: Sovereign Power and Bare Life. D Heller-Roazen (trans.). Stanford, CA: Stanford University Press. Anthony T (2009) “Governing Crime in the Northern Territory Intervention”. Law in Context 27(2): 90–113. ——— (2013) Indigenous People, Crime and Punishment. Oxon: Routledge. ——— (2018) “‘They were Treating me Like a Dog’: The Colonial Continuum of State Harms Against Indigenous Children in Detention in the Northern Territory, Australia”. State Crime Journal 7(2): 251–277. Anthony T and Blagg H (2013) “STOP in the Name of Who’s Law? Driving and the Regulation of Contested Space in Central Australia”. Social and Legal Studies 22(1): 43–66. Arendt H (1966) The Origins of Totalitarianism. New York: Harvest Books.

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——— (1976) Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin. Bauman Z (1991) Modernity and the Holocaust. Cambridge: Polity. ——— (1997) “The Work Ethic and Prospects for the New Poor”. Arena Journal 9: 57–76. Bickford AL (2016) Southern Mercy: Empire and American Civilization in Juvenile Reform 1890–1944. Toronto: University of Toronto Press. Bignall S (2014) “Postcolonial Redemption: Agamben’s Thought as Transformative”. Concentric: Literary and Cultural Studies 40(2): 29–54 Blagg H (2016) Crime, Aboriginality and the Decolonisation of Justice. 2nd ed. Sydney: Federation Press. Blagg H and Anthony T (2018) “‘Stone Walls Do Not a Prison Make’: Bare Life and the Carceral Archipelago in Colonial and Postcolonial Societies”. In E Stanley (ed) Human Rights and Incarceration: Critical Explorations. Oxon: Palgrave Macmillan, 257–283. Blagg H, Williams E, Cummings E, Hovane V, Torres M and Woodley K (2018) Innovative Models in Addressing Violence Against Indigenous Women: Final Report. ANROWS Horizons, 01/2018. Sydney: Australia’s National Research Organisation for Women’s Safety Limited. Buchanan D (1933) Packhorse and Waterhole: With the First Overlanders to the Kimberleys. Sydney: Angus & Robertson. Byrd J A (2011) The Transit of Empire: Indigenous Critiques of Colonialism. Minneapolis: University of Minnesota Press. Comaroff J and Comaroff J L (1993) “Introduction”. In J Comaroff and J L Comaroff (eds) Modernity and Its Malcontents: Ritual and Power in Postcolonial Africa. Chicago: University of Chicago Press, xi–xxxiv. Dodson P (1991) Regional Report of Inquiry into Underlying Issues in Western Australia. Canberra: Australian Government Publishing Service. Retrieved from http://trove.nla.gov.au/work/20038786?selectedversio n=NBD7975627 Ellen R (2019) “NT Police Did Not Have Power to Breath Test Woman in her Home, Judge Finds”. ABC News, 19 April. https://www.abc.net.au/news/201904-19/nt-police-woman-breath-tested-breathalysed-at-home-dv-consent Fanon F (1991) The Wretched of the Earth. New York: Grove Weidenfled. Foucault M (1995) Discipline and Punish: The Birth of the Prison. 2nd ed. A Sheridan (trans.). New York: Vintage Books. Gibson P (2012) “Return to the Ration Days: The Northern Territory Intervention—Grass-Roots Experience and Resistance”. Ngiya: Talk the Law 3: 58–107.

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——— (2017) “10 Impacts of the NT Intervention”. NITV, 21 June. https:// www.sbs.com.au/nitv/article/2017/06/21/10-impacts-nt-intervention Guha R (1997) Dominance without Hegemony: History and Power in Colonial India. Cambridge, MA: Harvard University Press. Hansen T B and Stepputat F (2005) Sovereign Bodies: Citizens, Migrants and States in the Postcolonial World. Princeton, NJ: Princeton University Press. Hughes R (1986) The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787–1868. London: Vintage Books. Hussain N (2003) The Jurisprudence of Emergency: Colonialism and the Rule of Law. Ann Arbor, MI: University of Michigan Press. Lombroso C (2006) Criminal Man. M Gibson and N H Rafter (trans.). Durham: Duke University Press. McDonald H (2018) “Data Reveals 100 Percent of Youth Detained in NT Were Aboriginal”. Radio National, Australian Broadcasting Corporation, 27 June. http://www.abc.net.au/radionational/programs/breakfast/data-reveals100-percent-of-youth-detained-in-nt-wereaboriginal/9913822 Mignolo W (2011) The Darker Side of Western Modernity: Global Futures, Decolonial Options. Durham, NC: Duke University Press. Mirsepassi A (2000) Intellectual Discourse and the Politics of Modernization: Negotiating Modernity in Iran. Cambridge University Press. Morgensen S L (2011) “The Biopolitics of Settler Colonialism: Right Here, Right Now”. Settler Colonial Studies 1(1): 52–76. Mühlhahn K (2010) “The Concentration Camp in Global Historical Perspective”. History Compass 8: 543–561. Quijano A (2007) “Coloniality and Modernity/Rationality”. Cultural Studies 21(2–3): 168–178. Read P (1982) The Stolen Generations: The Removal of Aboriginal Children in New South Wales 1883 to 1969. Sydney: Government Printer. Reed A (2003) Papua New Guinea’s Last Place: Experiences of Constraint in a Postcolonial Prison. New York: Berghahn Books. Royal Commission into the Protection and Detention of Children in the Northern Territory (2017) Final Report. Vol. 1. Canberra: Australian Government Publishing Service. Sharp J P (2009) Geographies of Postcolonialism. London: Sage Publications. Simpson A (2014) Mohawk Interruptus: Political Life Across the Borders of Settler States. Durham, NC: Duke University Press. Staples R (1975) “White Racism, Black Crime, American Justice: An Application of the Colonial Model to Explain Crime and Race”. Phylon 36(1): 14–22.

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Tedmanson D (2008) “Isle of Exception: Sovereign Power and Palm Island”. Critical Perspectives on International Business 4(2/3): 142–165. Thobani S (2007) Exalted Subjects. Toronto: University of Toronto Press. Tranter K and Anthony T (2019) “Race, Australian Colonialism and Technologies of Mobility in Kalgoorlie”. University of Western Australia Law Review 45(1): 99–135. Wolfe P (2006) “Settler Colonialism and the Elimination of the Native”. Journal of Genocide Research 8(4): 387–409.

Legal Materials Northern Territory Coroner’s Court (2016) Inquest into the Deaths of Wendy Murphy and Natalie McCormack NTLC 024.

Royal Commission Materials AD (2016) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 9 December. AI (2017a) Transcript of Closed Court Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 21 June. ——— (2017b) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 16 June. AN (2017) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 17 February. Anderson P A (2016) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 12 October. AU (2017) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 16 February. CJ (2017) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 31 May. CL (2017) Transcript of Closed Court Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 2 June.

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Coon L (2017) Transcript of Proceedings. In the Matter of a royal commission into the Child Protection and Youth Detention Systems of the Northern Territory, 21 April. DB (2017) Statement. In the matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 26 June. DG (2017a) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 22 June. ——— (2017b) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 22 June. DM (2017) Recorded Story. In the matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 22 June. DO (2017) Transcript of Interview. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 19 June. Elferink J (2017a) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 27 April. Engels K (2017) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 22 March. Fattore J (2017) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 30 January. Giles A (2017) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 28 April. Hamburger R K (2016) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 6 December. Hunyor J (2017) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 20 March. Kelleher B K (2017) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 16 March. Middlebrook K M (2017) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 2 March.

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Tasker D J (2017) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 15 March. Tobin E (2017) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 24 March. Turner J (2017) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 13 March. Voller D (2016) Statement. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 25 November. ——— (2017) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 20 April. Zamolo C L (2017) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 20 March.

9 Carceral Feminism: Saving Indigenous Women from Indigenous Men

The Colonial Patriarchal Gaze A claim in 1989 by Dianne Bell (Bell and Nelson 1989), an anthropologist working in the United States, that the rape of Aboriginal women is “everyone’s business” sparked a debate between white radical feminists and Indigenous women. The former attempted to universalise the experience of women in opposition to the patriarchy. The latter, led by Bidjara and Birri-Gubba Juru woman Jackie Huggins (Huggins et al. 1991, 506) with other Australian Aboriginal women, challenged the radical feminist classification. They refuted Bell’s perception of rape “from a privileged white, middle-class perspective”, which was incapable of understanding the experiences of being “black and powerless”: Blacks have to face the individual, communal and societal consequences that whites don’t have to endure. We realise that our internal conflicts have been exacerbated by colonisation and white women have always been a part of that process. (Huggins et al. 1991, 506)

They explained the need to enmesh Indigenous women’s subordination in the colonial matrix of power: “our country was colonized on both © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_9

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a racially and sexually imperialistic base” and “sexism does not and will never prevail over racial domination in this country” (1991, 506). Their solidarity was aligned more with “socialist feminists than radical feminists” as “our fight is against the state, the system, social injustices, and primarily racism, far in excess of the patriarchy” (1991, 506). They extend this solidarity to Aboriginal men who have suffered with them under this oppressive colonial system (1991, 506). Colonisation is an ongoing experience for Indigenous women who face subjugation, oppression and surveillance across the various “camps” that render their existence “bare life” (Agamben 1998). Bringing up their children, walking the streets, travelling in cars or on public transport, drinking alcohol, applying for a job—all these things are regarded as “everybody’s business”. The police monitor Indigenous women’s language and behaviour, child welfare authorities surveil their mothering, and social security officers check their movements and children’s schooling (and threaten to use racial powers for restriction of welfare income—see Equality Rights Alliance 2011). Although Indigenous women are around 30 times more likely than non-Indigenous women to be hospitalised due to family violence (Australian Institute of Health and Welfare 2018, xi; Department of the Prime Minister and Cabinet “DPMC” 2017, 95), they are less likely to receive legal protection and adequate health care. When women do present themselves at hospitals as a result of enduring injuries, they are often turned away, not believed about illnesses, and receive culturally unsafe health care (Behrendt 2019). A focus of this chapter is on family violence in remote communities because it has become a key reference point for the state’s framing of penality and control in Aboriginal communities. It is presented with an element of alarm: that family violence is spiralling out of control. Yet, mainstream claims that family violence is escalating have to be treated with some caution, with rates, although high relative to non-Aboriginal women,1 have remained stable for a number of decades (VicHealth 2012;  In remote communities, Indigenous women are hospitalised for family violence at 53 times the rate of non-Indigenous women (DPMC 2017, 95). 1

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Ferrante et al. 1996). Family violence has been a means for the state to implicate both Aboriginal men and women.2 Nonetheless, it is Aboriginal women, who are active responders to their needs and the needs of Aboriginal women across their communities. We discuss the work of Aboriginal women, men and organisations in remote communities to demonstrate that they have the solutions to their problems outside of the carceral framework (see Blagg et al. 2018). Moreover, the state has squarely focused on Indigenous men as the cause of family violence. This discourse was especially evident in the lead­up to the Northern Territory Intervention, discussed below. It deflects from the fact that non-Indigenous men also perpetrate family violence against Indigenous women across Australia (Our Watch 2018, 3). Most Indigenous persons (78.2%) are in a couple with a non-Indigenous person (ABS 2018), indicating that many  Indigenous women experience family violence at the hands of non-Indigenous men. These men rarely capture the public’s attention or are faced with accountability in the legal system (e.g. see Purdy and McGlade 2001, 105). This is a continuation of the frontier legacy that sanctioned violence and rape against Indigenous women (Behrendt 2000, 360).

 arceral Feminism, Deluth C and Counter-Narratives “Carceral feminism” relies on the “criminalization of the perpetrator, and often the survivor or victim, as a response to violence against women”: “The state doles out punishment, which often results in violence against the perpetrator within the penal system” (Sweet 2016, 202). Paradigmatic theory, policy and practice around violence against Aboriginal women has recently been popularised in the “Duluth” model, which has been  Their coercive powers have included both penal and welfare policy arms exercised in a discriminatory fashion (e.g. child protection and social security coming within this ambit). Family violence is a discourse to justify child welfare authorities taking Indigenous women’s babies and placing them in out-of-home care (e.g. Wright and Cashmore 2018; see critique by Sherwood 2015).

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adopted as best practice in many societies in the Global North. This approach considers the failures of the criminal justice system to exact punishment as the cause of violence against women. The knowledges and practices of Indigenous women, and men, in relation to their circumstances are overshadowed in favour of the “state-knows-best” mentality. Carceral feminism is based on notions of unchecked male power, while Indigenous perspectives are founded on the experience of inter-­ generational trauma and collective dispossession. A carceral feminist approach leans towards penal solutions, while a critical Indigenous stance advocates non-punitive engagement, even bypassing the white justice system in some instances and employing Indigenous Laws and forms of censure and healing. This chapter highlights some policy failures of Western carceral feminism deployed in mainstream policies and practices, including the incarceration of Indigenous women and perpetuation of institutional inter-generational trauma. It contrasts this with Aboriginal women’s and men’s initiatives to address family violence in remote communities, especially in the Kimberley, Western Australia, and provide a platform for self-determination. An Indigenous counter-narrative is challenging the law, theory and practice supporting a globalised “domestic violence” paradigm. The counter-narrative to Duluth is solutions to family and domestic violence in terms of the greater empowerment of Indigenous women and a place-based, holistic response to violence grounded in Indigenous culture. It moves Indigenous organisations and culture to the centre of the anti-­violence movement, and relegates non-Indigenous agencies to the periphery (inverting the current configuration). In order to understand the impetus of carceral feminism, and the blinkered view of Western feminism to Indigenous women’s experiences, we first canvass the distinct colonial apparatus applied to Indigenous women and its deleterious effects on Indigenous women’s cultural responsibilities and social and emotional wellbeing. Indigenous women were subject to exploitation and oppression at the hands of white men and women, and endured this suffering with Indigenous men and children.

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 rasures of Indigenous Women’s Roles E and White Guilt The imposition of hierarchies of race and gender were foreign to Indigenous societies. While Indigenous women and men, pre-­ colonisation, had separate roles, they were not based on oppression or subordination (Behrendt 1995, 169). Dispossession introduced a “coloniality of gender” in which gendered hierarchies have been central to the “coloniality of power” (Lugones 2008). Such hierarchies enforced subordinate roles on Indigenous women and enabled violence towards them and their communities on the premise that their lives were without value. Goenpul woman Professor Aileen Moreton-Robinson (2000, 1) explicates how “White Australia has come to ‘know’ the ‘Indigenous woman’” from the colonial gaze in which “Indigenous women are objects who lack agency”. Despite the rape and pillage of Indigenous women from the inception of colonisation, Indigenous women victims have long been neglected by the criminal justice system. When Indigenous women have been elevated to the status of “victims” worthy of protection, the “victim” trope has been mobilised to subordinate rather than empower Indigenous women. Indigenous women’s victimisation has shaped and reshaped the narrative of the settler colonial state, re-centring white innocence. It shifts responsibility to the blameworthiness of Indigenous men, and sets the settler state up as the saviours of Indigenous women, reinforcing tropes of white magnanimity and black guilt. Regarding colonising representations of Indigenous women, postcolonial thinker Gayatri Spivak (1988, 83) notes that in “the context of colonial production, the subaltern has no history and cannot speak, the subaltern as female is even more deeply in shadow”. In untangling the relationship between gender and the subjectivity of the Other, she discusses how depictions of Indigenous women reflect patterns of colonial epistemic subjugation. Indigenous women are stripped of their agency and subjectivity; they are objectified as empty sites on which the masculinities of the coloniser and the colonised compete. Spivak (1988, 93)

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argues that colonised women are voiceless in relation to a power play between the “traditional” violence of the Indigene and the epistemological violence of the coloniser. The response by Western feminists, who have been complicit in the “erasures of Indigeneity, land, and the violence of ongoing occupation” (Rowe and Tuck 2017, 6), has been to save Indigenous women from men, especially with reference to the punitive mechanisms of the criminal justice system and related control measures. This has disavowed Indigenous women’s standpoint as Indigenous and their relationships with culture, community and Country, including their standing as sovereign owners of land who hold positions of authority. It represents another instance where the Western tendency to think in categories limits our capacity to set violence in context. Over recent decades there has been an intensifying critique of Western feminism and its accounts of Aboriginal women. Eualeyai/ Kamillaroi woman and professor Larissa Behrendt (1993, 2000) notes that Aboriginal women provide insights that are distinct from Western feminist concerns and do not squarely fit in the rubric of gender. Her focus, with others and drawing on Huggins, is on the colonial matrix of power. In contrast to Western feminism, postcolonial feminism challenges the “authorising signature of Western humanist discourse” and suggests that the experiences of women of colour should be explored in their cultural, religious and social heterogeneity rather than with reference to the norms of Western women (Mohanty 1984, 335). Postcolonial feminists criticise Western feminism for its supposition of a universal struggle of women defined by a “cross-culturally singular, monolithic notion of patriarchy or male dominance” (Mohanty 1984, 335). They identify that a feature of the settler colonial state’s relationship specifically with Indigenous women is the invocation of a binary of control and blindness (Behrendt 2000; Watson 2011, 156, 163): the state seeks to protect and save Indigenous women without listening to them. They are subject to the denial of their land rights, their labour rights, control of their income and cultural roles. These enduring deprivations have their legislative inception in the Aboriginal Protection Acts (Watson 2011, 157).

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 ontrol of Aboriginal Women Under C the Aboriginal Protection Acts Consolidating the colonisers’ subordination of  Indigenous women, protectionist legislation in the nineteenth and twentieth centuries assured their control and incarceration (see Chap. 5). Through confining Indigenous women and girls on mission stations, settlements, homesteads and orphanages, the state implemented its objectives of civilisation, acculturation and assimilation. The Aboriginal Protection Acts across Australia, like in Canada, assigned a “Protector of Aborigines” (a white male, often a police officer, pastoralist or missionary) to control Indigenous peoples’ employment, money, marriages, rations and movements (Anthony 2013, 45). Indigenous women were subject to strict routines, including domestic labour that was often overseen by white women, and expectations of sexual servitude to white masters (Huggins 1987/1988; Wolfe 1994, 100). Women who sought to escape domestic servitude and other indentured labour under the protection acts risked being “hunted, captured and punished” by police and their masters. Their punishment included a “thrashing or prison” (Huggins 1987/1988, 14; also see Huggins 1995). Indigenous women were also denied their roles as mothers. “Whereas Aboriginal women were seen as fit to care for and rear the children of white women”, Robertson et al. (2005, 41) point out, “they were not seen as fit to mother their own”. This either took the form of epistemic violence and threats (being told that they could not care for their children), or brutal tactics where police, protectors and welfare agents dragged screaming Indigenous children away, who were clinging to their mothers (Haebich 1992). Evidence reported by the HREOC (1997, 6) reveals the damaging tactics of police in removing children: I was at the post office with my Mum and Auntie. They put us in the police ute and said they were taking us to Broome. They put the mums in there as well. But when we’d gone [about ten miles] they stopped, and threw the mothers out of the car. We jumped on our mothers’ backs, crying, trying not to be left behind. But the policemen pulled us off and threw us back in the car. They pushed the mothers away and drove off, while our mothers were chasing the car, running and crying after us.

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 ontemporary Control, Oppression C and Suffering of Indigenous Women in the Carceral Context Colonisation is an ongoing experience for Indigenous women. Their children continue to be taken by the state at disproportionate rates; they are imprisoned at exponentially higher numbers; their everyday realities are marked by prejudice by the state and private sector; and they often live in impoverished conditions, continuing to feel the effects of dispossession of their land. These oppressive experiences compound inter-generational trauma among Indigenous women. Their experiences of state interventions are not benign, but continue to be marked by force and violence, whether this be in police cells, child removals or even in their homes (as part of police searches for alcohol or domestic violence compliance checks). In recounting her story to the Royal Commission into the Protection and Detention of Children in the Northern Territory (2017, 91), an Aboriginal mother whose son was forcibly removed from her care by the police, spoke about this encounter as reopening generations of wounds. In that moment she came to the grave realisation “of what happened with our grandparents and the Stolen Generation” when Aboriginal children were stolen by the state over generations. A distinct feature of contemporary state controls of Indigenous women is their exposure to the criminal justice system. Since the late twentieth century, Indigenous women and girls have increasingly been sent to penal detention—in prisons, youth detention  centres and police cells—and, consequently, have suffered increasing harm from penalisation. Indigenous women are now the fastest growing prison demographic in Australia (Sherwood and Kendall 2013, 83; Baldry and Russell 2017, 7). In the first decade of the twenty-first century, the imprisonment rate increased by 59%, and it has increased steadily since (Law Council of Australia 2012, 1–2). Indigenous women in prison comprise over one-­third of the female prison population (although 1.29% of the general adult female population) and are 21 times more likely than non-­Indigenous women to be imprisoned (Human Rights Law Centre 2017, 10). Among other

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things, this has been a result of Aboriginal women breaching protection orders meant to protect them from men, but also applying to the women (see Nancarrow 2016, discussed below). Indigenous girls have also been subject to this increasingly penal regime. There has been a spike in the Indigenous female youth detention populations (who are detained primarily on remand). Jurisdictions such as the Northern Territory have witnessed the creation of an Aboriginal female youth detention population over the past decade (Royal Commission 2017), for reasons that will become apparent in this chapter. This growth in the Northern Territory and elsewhere, notably Queensland, resulted in Aboriginal girls residing in over-crowded facilities, being sent to adult prisons and co-habiting with boys. Indigenous women and girls cycle in and out of prison, on short sentences for predominantly minor crimes (Human Rights Law Centre 2017, 12; Bartels 2012a, 7), including traffic offences (e.g. driving unlicensed or unregistered vehicles that constitute one-quarter of offending), stealing, breaches of corrections and domestic violence orders, common assault (with no harm) and disorderly conduct (Anthony and Blagg 2013; MacGillivray and Baldry 2015). Indigenous women, compared to non-­ Indigenous women, are less likely to receive non-prison sentences for minor offences (2015, 11). While their sentences are short and their crimes are usually minor, police and corrections’ surveillance in the lives of Indigenous women is significant. They are over-policed for alcohol-related behaviour, offensive language, public nuisance and other conduct mentioned in the foregoing paragraph (see Walsh 2017, 335). Women can be arrested for drinking alcohol at home (Ellen 2019), or end up in police cells for doing no more than sleeping on a train while allegedly intoxicated, which occurred in the case of Tanya Day who died in custody following her arrest by four police officers at Castlemaine train station, Victoria (Worthington and Curnow 2018). Indigenous women and girls are treated cruelly and indecently in custody and subject to the inferior custodial settings and conditions. They have to endure forced strip searches, assaults and inappropriate touching (Royal Commission 2017; Human Rights Law Centre 2017, 16). They are disproportionately confined in high risk cells (Armstrong et al. 2007,

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216) and receive inadequate health care (Wahlquist et al. 2018). Baldry and Russell (2017, 7) note that women’s prisons are particularly likely to be over-crowded and unhealthy places. Western Australia’s women’s prisons, Bandyup and Melaleua (remand facility) have approximately 50% Indigenous women, which has been a constant source of concern to the state’s prison inspectorate (Office of the Inspector for Custodial Services 2014, 2017a, 29, 2017b, 64).

Killing Ms Dhu Cruel prejudice in prisons resulted in Yamatji woman Ms Dhu women dying in inhumane circumstances (Western Australian Coroner’s Court 2016, [857]). This discussion of the circumstances that killed her demonstrates how the police treated her as bare life in the cells. Ms Dhu was a 22-year-old Yamatji woman who died in police custody in South Hedland, Western Australia in 2014. She had been arrested two days earlier on a “warrant of committal” for failing to pay $3622 in outstanding fines. The warrant was executed by the Police while attending a call out where Ms Dhu was a victim of a “flogging” by her male partner. Reports of Indigenous women being arrested on outstanding warrants for driving offences, breaches of court orders, and so on when reporting violence to the police are not uncommon in Australia. There have also been instances where victims have been locked up in the back of paddy wagons with their male abuser. Ms Dhu was locked up for four days under the warrant in lieu of paying her fines. Ms Dhu had broken ribs and was developing septicaemia and pneumonia as a result of her injuries. Her chest pain worsened and she had difficulty moving and breathing. Police officers ignored her complaints. The Western Australian Coroner’s Court (2016) heard that the police believed she was “faking it” ([463]) and she was just a “junkie who was coming off drugs” ([501]). Eventually, with great reluctance, the police took her to the Hedland Health Campus on both 2 and 3 August. The police dragged her like a “dead kangaroo” into the transport vehicle (Whittaker 2018). At the Health Campus, Ms Dhu was given a cursory medical examination. The coroner pointed to the “inhumane actions” of the clinicians, which were affected “by underlying preconceptions about

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Ms Dhu”, including that she was a drug addict (Western Australian Coroner’s Court 2016, [483]). Hospital staff failed even to take her temperature. A fatal narrative had been constructed, scripted by the police and a number of health workers, with Ms Dhu in the role of the “junkie” and troublemaker with “behavioural issues”, “faking illness” to avoid her just deserts (Blue 2017). As researcher and member of the Western Australian Deaths in Custody Watch Committee, Dr Ethan Blue (2017, 300) writes: Through eye-rolls and offhand comments, through notes jotted on medical records, they communicated to each other that this was the case. We might identify these eye-rolls as micro-solidarities of paternalistic whiteness and the settler state, in which state agents—who wear official uniforms and have to deal with ‘those people’; those rendered sick, unwell, unruly, and disorderly by the historical and social forces of colonialism—communicate a shared experience to one another.

Counsel assisting the Coroner, Ilona O’Brien stated, “By the morning of 4 August 2014, Ms Dhu’s clinical state rapidly worsened and although it was not appreciated by the police officers involved…she was in an advanced state of septic shock and only hours from death” (quoted in Gartry and Trigger 2015). She died while being removed from her cell, after the police, still believing she was faking it, begrudgingly dumped her in a wheelchair to take her back to hospital.

Ms Dhu Treated As Nothing but “Bare Life” The “micro-solidarities” of whiteness expressed through “eye-rolls” and other expressions of commonality are familiar to many Indigenous women accessing mainstream services,3 where Indigenous women’s Indigeneity is, through various modes of conscious and unconscious bias, constructed as  This includes white micro-solidarities in health care. Aboriginal health scholars Chelsea Bond and Juanita Sherwood have commented that it is not uncommon for Aboriginal women and Aboriginal mothers to be regarded by multiple agencies as problems who are unworthy of health screening and healthcare (in Behrendt 2019). Such perceptions in the health and allied systems contributed to the death of pregnant Wiradjuri woman Naomi Williams and her unborn baby (see Dunlop 2019a, b). 3

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the problem to be managed. They get the distinct message that if only they could stop being Aboriginal their problems would be solved (Blagg 2016). It is a reminder that the apartheid structures, cultures and mentalities established under colonisation still continue to exert influence in the present. Ms  Dhu’s case demonstrates the ways solidarities of whiteness continue to play a part in the erasure of Indigenous humanity. These systems were devised to ensure that Indigenous women only receive a “bare life” service, indifference or mistreatment: “when one of our people dies like [Ms Dhu] it does not count as a crime, and no one is responsible” (Mervyn Eades, Deaths in Custody Watch Committee WA, quoted in Blagg et  al. 2018, 54). Indigenous women are acutely conscious of the negative bias attached to being an Indigenous woman seeking support from mainstream agencies. This is one reason why so many choose not to access them, or only do so in dire emergencies, for the briefest period of time. It brings us back to the need for culturally, not just physically, secure responses to violence, in places that do not threaten women’s identities, values and beliefs. It also raises the importance of secure “relational” structures for Indigenous women’s wellbeing (Blagg et al. 2018, 55, and outlined below).

“ White Men Are Saving Brown Women from Brown Men” In the Australian mainstream policy setting, white men, have seized on the plight of Aboriginal women affected by Aboriginal male violence to implement top-down controls of Aboriginal men and women. Their discursive pitch is saving Aboriginal women and children—taking from ­carceral feminism’s rescue operation—but their policy has been less about saving than being seen to save. This rings true to Spivak’s (1988, 92) observation that “white men are saving brown women from brown men”, which explains how the coloniser establishes himself as a representative of the civilised and “good” society. He is “marked by the espousal of the woman as object of protection from her own kind” (Spivak 1988, 94, italics in original). The quote also reflects the polarisation of two male identities, the “one” (colonist/white) and the “other” (Indigenous/brown),

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according to Spivak. In this binary, white men represent “modernisation”, whereas brown men represent “traditionalism”. Their struggle obliterates the displaced figuration of the “third world woman”, not into nothingness, but caught in the space between tradition and modernity (Spivak 1988, 102). Spivak refers to the British codification and circumscription of the Hindu Law in relation to the practice of sati (where a woman sacrifices herself following her husband’s death, including out of her own choice) to demonstrate how the combined forces of colonialist and Indigenous patriarchy silenced the voices of the subaltern brown woman: “between patriarchy and imperialism, subject-constitution and object-formation, the figure of the woman disappears” (1988, 102). Lata Mani (1998) extends this analysis, revealing that through debates on the sati, the subaltern woman’s body was a “site for the contestation of tradition” (Mani 1998, 2). She states that the colonial discourse was based on a fabrication of the sati to essentialise colonised men in relation to “tradition” and empower colonised women through “modern” legislative and administrative control. Equally, the widow who is subject to such practices is “always a victim”, infantalised and “presumed to be uneducated and incapable of both reason and independent action” (1998, 27). The debate around sati place the woman and her body as a site of tension between the “violence of widow burning” and the “‘epistemic violence’ of colonialism” (1998, 159).

 hite Men and the State Saving Aboriginal Women: W The Northern Territory Intervention A key site of contestation between the white mainstream approach and Indigenous philosophies lies in attitudes towards Indigenous men. The role of men in forming part of the solution to family violence is becoming heavily contested, with the mainstream model adopting the image of “carceral feminism” (Sweet 2016, 202): saving Aboriginal women and children through the state’s punitive apparatus. Blagg (2016, 147) has pointed out that Aboriginal men are a channel for white fears about the unrestrained native. These fears have been fuelled by mainstream reports that Aboriginal males, the most incarcerated in the world, get off lightly

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by the courts. Such reports galvanise support for punitive measures to support helpless Aboriginal females (Toohey 2002, 21). Sexual violence of Aboriginal children and women, including unproven allegations of paedophile rings in Aboriginal communities (by Minister Mal Brough on Brissenden 2006), have predicated state control of Aboriginal communities. Discourses about Aboriginal men as the problem have enabled coercive measures over Aboriginal peoples’ lives. This was brought into sharp relief in 2006 when central Australian Crown Prosecutor, Nannette Rogers, went on national television to call for tougher penalties for Indigenous male perpetrators of sexual violence (Jones 2006a, Smith 2006). On the following evening, then Minister for Indigenous Affairs, Mal Brough, went on the same program to support tougher measures. He expressed gratitude that such media reports have shocked the sensitivities of the Australian public to the core (Jones 2006b). This broadcast precipitated a Northern Territory inquiry into sexual abuse of Aboriginal children, led by Alyawarre woman Pat Anderson, with Rex Wild. It was based on meetings with Aboriginal people in 45 communities, giving particular voice to the concerns of Aboriginal women, in the Northern Territory. A key outcome was a focus on Indigenous-led solutions. The “critical” recommendation of its report, Ampe Akelyernemane Meke Mekarle: Little Children Are Sacred, was that governments commit “to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities” (Wild and Anderson 2007, 21). It further recommended: That the government actively encourage, support and resource the development of community-based and community-owned Aboriginal family violence intervention and treatment programs and any other programs that meet the needs of children and are designed to respond to the particular conditions and cultural dynamics of each community. (2007, 31)

The inquiry identified the need to respect and empower Aboriginal laws and people (2007, 54) and strengthen Aboriginal community justice mechanisms, including Aboriginal-led Law and Justice Groups and planning, Aboriginal night patrols, and Aboriginal women’s shelters (see Chaps. 10–11). These would build the capacity of Aboriginal communities to respond to and

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prevent sexual and family violence affecting Aboriginal children (2007, 53). The inquiry identified the need for systemic repair to address a range of socioeconomic issues adversely affecting children in Aboriginal communities, including poverty and inadequate housing and health care (2007, 15). However, rather than implement its recommendations, the Commonwealth  government enacted carceral colonialism for saving Aboriginal women and children while rendering them voiceless. Straight off the back of this inquiry, top-down controls were imposed on Aboriginal men, women and families. These controls, set down by the Australian government and ultimately supported by the Northern Territory government, are broadly known as the Northern Territory (“NT”) Intervention, which we have alluded to earlier and discuss further in Chap. 11. They include restrictive legislation (curtailing Aboriginal rights to land, social security and access to alcohol), increased police numbers and powers, the dissolution of Aboriginal community councils and replacement by Northern Territory government shires and Australian government business managers in up to 100 Aboriginal communities and town camps. The effect has been to curtail the “autonomy and cultural authority” of Aboriginal women (Watson 2011, 154; also see Watson 2014, 336). Reactions by Aboriginal women to the NT Intervention have included outrage, sorrow and disbelief. The author of Little Children Are Sacred, Pat Anderson (Wild and Anderson 2007, 149) described the NT Intervention as a “betrayal” of Aboriginal communities. It defied what Aboriginal communities across the NT told the inquiry into child abuse, especially the need to involve them in solutions. Instead, it has subjected Aboriginal people to demeaning, oppressive and discriminatory practices, including relegating Aboriginal people to separate lines in shops, instilling fear in children whose homes are raided by police, and generating anxiety in Aboriginal mothers that child protection would come and steal their children (Shaw 2013). Mount Nancy Town Camp resident and activist in Alice Springs, Barbara Shaw (2013), commented that Aboriginal people have been treated “as terrorists” under the NT Intervention. Increased policing mandated by the NT Intervention has resulted in a doubling of Aboriginal adults and children in incarceration and a trebling of Aboriginal women in prisons (Shaw 2013). Shaw (2013) illustrates her immediate burden as

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an Aboriginal woman: “Close relatives of mine—men, women and teenagers are all currently in prison. I’m giving support to my brother-in-law, looking after a baby and young child while his wife is in prison”. Aboriginal mothers and grandmothers have spoken about the police brutality in taking children from their care since the Intervention. They have been stood over by police who threatened to arrest them, while gripping their gun, if they did not hand over their children (Royal Commission 2017, 91). One Aboriginal mother recalled six police officers dragging her crying son away from her, telling him that “there’s nothing I can do” (2017, 89). The removal of a granddaughter from an Aboriginal grandmother was described in the following way: “I see a death in me. I can’t take it anymore. It’s just too shaming. It’s like heart attack” (2017, 92). There is no evidence that the NT Intervention has brought safety to Aboriginal women and children. To the contrary; police data on crime investigations since 2007 shows no increase in police call outs of child abuse or police identification of such abuse in Aboriginal communities despite hundreds of police, eight police stations and crime taskforces being established to investigate and respond to the abuse (Blagg and Anthony 2014, 110; Anthony 2009). This reveals the rhetoric of the NT Intervention—that child sexual assault had reached emergency levels (Brough 2007)—to be a performative gesture of saving women and children. In its wake, the Intervention has compromised the social and emotional wellbeing of Aboriginal women, men and children, curtailed their rights as human beings, and increased their exposure to institutional violence. In the decade following the Intervention, Aboriginal suicide rates, including among children, escalated by six-fold; Aboriginal children have been taken from their families and placed in out-of-home care at unprecedented rates, and Aboriginal children have been systemically tortured in detention centres (Gibson 2017; Anthony 2017; Royal Commission 2017). Yet the Intervention policy and practice continues today to further the “state’s historical imperative to control Aboriginal women” (Watson 2011, 148). Its most recent iteration was led by white female government ministers who expressed a desire to listen to Aboriginal women; a strategic response to quell critics who blamed the government for excluding Aboriginal women. Prime Minister Julia Gillard and Indigenous Affairs

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Minister Jenny Macklin—both self-proclaimed feminists—nonetheless espoused the discourse of “saving” Aboriginal women. They originally supported the police insurgence in Aboriginal communities in accordance with a carceral feminist logic (see Macklin 2007). They then defended criticism by United Nations Indigenous Special Rapporteur that the Intervention impeded Indigenous rights, by stating that the Intervention warrants the curtailment of rights to protect Aboriginal women (Rodgers 2009). In announcing the extension of the NT Intervention, Macklin and Gillard, stated “the situation for children, for women and for families … still requires a significant commitment from the Commonwealth” (Australian Labor Party 2011).

 hite Men Saving Aboriginal Women “Victims” W in the Penal Arena Spivak’s and Mani’s appraisal of colonial debates on the sati in India resonates with debates on Aboriginal customary marriages and law in Australia. One aspect of the state’s moral panic over crime in Aboriginal communities preceding the NT Intervention, in addition to the abuse of children and women, was that communities sanctioned forced cultural marriages. Ministers described these marriages as an affront to Australian values, cultural and social norms and law and order. They regarded Aboriginal women as victims of such marriage requiring saving by the state. Without these women knowing, it was the state that would lead them to their emancipation. Prime Minister John Howard (2006) remarked that culture operated as a veneer in the Anglo-Australian legal system and customary marriages should be outlawed. This was similarly articulated by the Minister for Indigenous Affairs in 2006, Mal Brough, who maintained that Indigenous offenders were “hiding behind customary law” (on O’Brien 2006). Other politicians referred to customary marriage as “child trafficking” (Young 2005, 16) and as “exploitation and violence” (Abbott 2006). Over a decade later, in 2017, NT Attorney General John Elferink told the Royal Commission into the Protection and Detention of Children that the practice of customary marriage “continues under a veil of secrecy” (Elferink 2017b, 5217). He

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contended that it “no longer [has] currency” in the “modern context” because of the impact on Aboriginal female victims and thus should be prohibited (2017b, 5218). Elferink criticised an Aboriginal female “victim” for having “chosen to subordinate herself” by being in court, supporting her husband who was charged with under-age sex in customary marriage (2017b, 5184). The laws of the settler colonial state, however, have operated to police and punish under-age sex in customary marriage for a number of decades. Courts have also condemned the practice and sought to send a message to Aboriginal men and communities. They apply legislation that requires a punitive response to under-age sex in customary marriage, including amendments to the Northern Territory Sentencing Bill. Such amendments have given precedence to safeguarding the interests of the victim by ensuring “that offenders pay their penalty and that society exacts retribution” (Bell 1995, 4756). They require that Aboriginal cultural evidence will not be admitted in sentencing without rigorous scrutiny (Sentencing Act 1995 (NT) s 104A). As part of the NT Intervention legislation, the Australian government expressly excluded customary law and cultural evidence considerations in sentencing, resulting in discriminatory processes for Aboriginal people and harsher sentences (Northern Territory National Emergency Response Act (Cth) s 91, and later Crimes Act 1914 (Cth) s16AA). To enact this legislation, the Commonwealth Government suspended racial discrimination protections under the Racial Discrimination Act 1975 (Cth). The measure was justified by helping to address Aboriginal violence against women (Ellison 2006, 15). The courts have regarded, in Spivak-ian terms, that Aboriginal girls have fallen between the cracks of “traditional” and “modern” societies. In a case where an Aboriginal girl who was promised to the Aboriginal male offender who was subsequently charged with statutory rape, the NT Supreme Court held that “Aboriginal girls” should be freed from customary marriage; they need some freedom of choice as to whether or not they want to enter into such a marriage and to thereby empower them to pursue equally with young Aboriginal men employment opportunities or further education rather than be pushed into pregnancy and traditional domesticity prematurely. (R v GJ (2005) 196 FLR 233, [36])

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Despite emphasising the interests of the victim, Aboriginal women in cases concerning customary marriage are “rendered mute” (Douglas 2005, 182, 200). When Aboriginal women have sought to enact agency in sentencing hearings, such as conveying a preference for the man to be dealt with by Aboriginal law punishment, as opposed to incarceration, their views have been dismissed (see Anthony 2013, 106–107). For instance, in Queen v Bara (2006) the Aboriginal woman who had been assaulted by her partner told the court she did not want the offender to go to prison, but to an isolated male-only environment in accordance with Aboriginal law (2006, [11]). The NT Court of Appeal noted that the victim’s, along with the Elders’, request for a non-custodial sentence were not a significant consideration (2006, [12]). It emphasised the need to send a “message” to “men in Aboriginal communities that the wishes of a victim, be they freely given or given under some form of duress, will not prevail in the face of serious criminal conduct” (2006, [19]). In these cases, white “judicial” men have sought to protect the “ideal victim” who is lacking in culture except when culture is a threat to her. The “ideal victim” is defined by her moral character and gender rather than her culture, according to Crenshaw (1991, 1278). Blagg (2008, 138) points out that Indigenous women can earn the status of victim, long been denied to them, “provided they are positioned within victim discourse as helpless, hopeless victims of traditional Aboriginal male violence, sanctioned—even encouraged—by Aboriginal law” (italics in original). According to the Northern Territory Supreme Court, the victim does not have a stake in the Indigenous community and instead the community is a source of victimisation to her.

F alling Through the Cracks: Aboriginal Women “Offenders” The punitive framing of Indigenous people has not only affected men; women have also been captured by this discourse. The need to “protect” and “save” Indigenous women is readily forgotten by law enforcers when the woman is deemed an offender. As we outlined above, Indigenous women are disproportionately pursued by the police and are subject to

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discriminatory stereotypes in the criminal justice system. Equally, the supreme courts in Australia have sought to impose punitive sentences on Aboriginal women in order to send a message that their behaviour will not be tolerated. The focus then becomes one of “saving” the Indigenous woman offender through managing her risk, including the risks presented by her own “trauma”. Courts demonstrate little understanding that Indigenous women’s offending is often driven by “fear and the instinct to protect self or child rather than aggression” (Williams 2008, 272). Where violent crimes are concerned, it is often as result of “family feuds” where the Indigenous offender is also the victim (Vivian and Priest 2012, 29). Indigenous female victims in Australia are heavily represented among prison inmates, with estimates at approximately 90% (NSWLRC 2000, 188; Bartels 2012b, 20). An unintended effect of the harshening of violence laws across Australia, including in response to Indigenous women’s victimisation, is that women themselves are being dragged into the justice system (Nancarrow 2016). Indigenous women are increasingly policed in their homes and subjected to protection orders for “fighting” because the ­system is unable to distinguish between forms of interpersonal violence designed to coercively control, and other forms of violence (Nancarrow 2016, 158). They end up in police cells and prisons for breaching orders or because police presence in homes results in Indigenous women being picked up for another offence, including offences against police officers. Although the state and courts recognise that Indigenous women experience disproportionate levels of family violence and sexual assault, they afford little weight to these circumstances in sentencing. One example of this is in the New South Wales Court of Appeal decision of R v Trindall ([2005] NSWCCA 446, [36], [35]). The court did not place significance on the fact that the Aboriginal female defendant had her drink spiked and was sexually abused just prior to her violent offence, that she was a victim of family violence (including as a child), or that she was removed from her family as a child. The court stated that principles that mitigate a sentence for Aboriginal people do not apply to the woman, including because she was removed from her Aboriginal community at a young age. The judge stated:

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I do not consider that the applicant’s Aboriginality is relevant to explain or throw light on the particular offences and the circumstances of the applicant. It is but one factor in an otherwise complex set of negative factors. (2005, [27])

Where courts do identify “trauma” suffered by Indigenous women, this is often pathologised, rather than understood as an inter-generational issue of institutional oppression. “Trauma” is construed to problematise Indigenous women. In the Victorian Supreme Court, sentencing remarks for DPP v Kerr ([2014] VSC 374) focused on her physiological, psychological and addiction problems and her very low intelligence (2014, [36]). The court asserted, You are easily irritable, and prone to angry outbursts and reckless and self-­ destructive behaviour, all of which can be exacerbated by alcohol. It seems that some of that behaviour may be related to your post-traumatic stress disorder. In so far as that behaviour may be a personality trait, courts now recognise that the experience of growing up in a socially-disadvantaged environment, surrounded by alcohol abuse and violence, may leave a mark on a person throughout life. (2014, [34])

Imprisonment is sometimes seen as capable of fixing trauma, rather than embodying a source of trauma for Indigenous women. In the Australian Capital Territory Supreme Court case of Smorhun v Devine ([2014] ACTSC 208), the Indigenous woman was sentenced for driving offences (drink driving, failing to obey traffic signal and speeding). The Supreme Court referred to the woman’s history of being in an abusive relationship (2014, [68]). The court, however, increased the woman’s sentence because her behaviour was a “risk” to the community (Smorhun v Devine (No 2) [2014] ACTSC 302, [8]). It did not heed to the Galambany Circle Sentencing Court’s concern that Devine’s alcohol consumption was for the sole reason of pain relief, or that her healing could be better managed through Aboriginal law and communicating with her Elders (Smorhun v Devine [2014] ACTSC 208, [54]). Similarly, the Northern Territory Supreme Court in Fejo v Sims & Anor ([2014] NTSC 9) imposed a custodial sentence for an Aboriginal woman

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convicted of shoplifting and breaching a suspended sentence. It dismissed evidence that “remaining in the community was likely to greatly enhance the chances of further reform” and rehabilitation, whereas “any sentence of imprisonment was likely to significantly undermine the progress she had made” (2014, [30]). It ignored the trauma that prison presented her and issues of socio-economic disadvantage. Indigenous scholar Irene Watson (2008, 15) notes that the “dominant conversation never engaged the view of inter-generational trauma and its source—colonialism”, such that Aboriginal traumas are stuck in the colonial paradigm of blaming the “backward native”.

Not a Cultural Revolution We should be conscious of the historical conditions that have framed varying Indigenous women’s perceptions and standpoints of their place in the world. For example, in the Global North the 1960s are memorialised as a time of radical social change, liberation movements, the ­emergence of youth subcultures and counter-cultures and feminist rejection of patriarchal social relations and the nuclear family. This extended to 1970s movements towards self-determination in urban Aboriginal areas such as Redfern, Sydney, which became a hub for Aboriginal activism and radical politics (Foley 2009). This was also a time when Redfern was a key site for racially discriminatory policing and police violence, including against Aboriginal women, which was taken up as an issue by Aboriginal activists (Anthony 2018). Among these activists were wellknown Wiradjuri identities such as Jenny Munro, Bronwyn Penrith, and the late Isabel Coe and “Mum Shirl”. However, these sweeping “winds of change” were experienced differently for Aboriginal people in northern Australia, as it was in other settler colonies. It was a time when Aboriginal people were rendered placeless after having been pushed off cattle stations, which had for decades kept them subservient in a feudal relationship of co-dependence where they were unpaid but able to live on and off their land (Anthony 2004). This exploitative relationship affected thousands of Aboriginal people who lived with their families on stations across northern Western Australia,

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Queensland and the NT, and rendered them destitute. The industry had profited off their widescale labour, including during the Great Depression when the rest of the economy was flailing, but after generations of working for their cattle masters and receiving no remuneration, Aboriginal people were pushed onto the margins of society. Steve Hawke observes in his rich study of the origins and development of Fitzroy Crossing in the Kimberley region of Western Australia: In these tropical parts, [the 1960s] did not bring the anti-war movement, the counterculture, feminism…they blew down an industry, a regime, a culture that for the best part of a century had thrived on … large communities of unpaid Aboriginal workers and their families. (Hawke 2013, 23, 24)

Problems in towns like Fitzroy stem from the catastrophic way in which the township was founded, when Aboriginal people were pushed off cattle stations because white bosses would not pay wages. The experience has been one of disempowerment, trauma and loss of connection with Country. Aboriginal women who were able to exercise a modicum of agency on cattle stations and some of their cultural roles—especially in the wet season when Aboriginal people returned to ceremonial sites and because cattle stations often occupied Aboriginal peoples’ places—were pushed onto government settlements (Anthony 2007). Far from the reach of feminism and its 1960s calls for equality, Indigenous women in north Australia were alienated from their lands and increasingly vulnerable to the policing and child removals.

Law and Policy Down a Cul de Sac The “mainstream” feminist model has driven law and policy into a legal cul de sac where Indigenous victims are concerned. This is because it has focused exclusively on coercive gender control as the fundamental cause of violence against women. It fails to recognise other forms of aggression, particularly fights, and on this basis, “the police and courts adopt a formulaic approach” (Nancarrow 2016, 155). As Heather Nancarrow (2016, 158) demonstrates, this approach has meant that women have become punished by this system that is unable to distinguish between forms of

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interpersonal violence designed to coercively control, and other forms of violence. In her research on Indigenous violence, Nancarrow found that many incidents that were being pushed into the domestic violence framework by police and other agencies were in fact couple fights, concluding that Indigenous couple fighting and jealous fighting is different from “non-Indigenous domestic violence” based on “a continuous pattern of domination and coercive control” (Nancarrow 2016, 129, emphasis in original). Consequently, Indigenous women have been adversely affected by protection orders slapped on them following the wave of carceral feminism. Nancarrow notes that feminist demands for “mandatory arrest, pro-arrest and no-drop prosecution policies” have been used in punitive ways against women as part of a law and order agenda (Nancarrow 2016, 75). Law reform bodies have become more alert to the fact that Aboriginal family violence can be perpetrated by a range of actors and is “compounded by discrimination and trauma associated with historical and ongoing injustices” (Royal Commission into Family Violence (Victoria) 2016, 8). The Royal Commission into Family Violence further identified that the role of agencies such as police and child protection—which may ordinarily come to the assistance of victims—are deeply distrusted by Aboriginal people who have experienced dispossession and child removals at the hands of such agencies (2016, 33).

Leaving Duluth In settler colonies, mainstream criminal justice interventions into family violence have taken their lead from the Duluth Model, as noted above. Duluth, Minnesota stimulated the emergence of coordinated and integrated, inter-agency responses to violence against women, with a central role for the police and courts. Perpetrators are leveraged into programs designed to challenge and change the attitudes that permit violence, and particularly their sense of entitlement to violence. Since their inception in the early 1980s, Duluth style models have undergone a number of iterations and, in the wake of criticisms by lawyers, researchers and

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therapists, have moderated their stance that all violence against women results from gender equity issues. The founders of the model have suggested that it needs to be “adapted” not simply “adopted”, in order to reflect local conditions (Pence and Paymar 1986). Even with modifications, Duluth remains controversial from an Indigenous perspective. Its reliance on the criminal sanctions and Western conceptualisations of domestic violence raises immediate concerns, given Indigenous perspectives on prison as an existential threat to well-being while not transforming behaviour (Sherwood et al. 2015; Anthony et al. 2020). Furthermore, the focus on criminalisation ignores Indigenous self-determination. It is not that Indigenous women have not voiced them or sought to act upon concerns of family violence (Behrendt 2016), it is simply that agencies have chosen not to listen.

Feminist Models and “Deep Colonisation” Despite the significant efforts directed towards women’s safety in Australia, mainstream feminist models—meaning those models based on theories of gender inequality and patriarchal power over women as the sole, or primary, cause of intimate partner violence—are fundamentally inadequate because they are directed at only one source of the problem, and ignore the confluence of factors such as colonisation, in framing Indigenous women’s lived experiences of violence. Further, they are “mainstream” in so far as they see the problem in terms of the lack of “equality” for women. In this respect, the mainstream white feminist paradigm maintains the colonial matrix of power by failing to acknowledge the need for a decolonising, rather than a reformist, strategy. As we discuss further, these models tend to gloss over the distinctive experience of Indigenous women as suffering from colonial oppression and shoehorn their multi-layered experiences of conflict and violence into a mono-causal explanatory framework. They also downgrade the relevance of other change processes to the reduction of family violence, such as those focused on community healing, self-determination, treaties and land rights, and over-valorise the capacity of the white legal system to

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deter, punish and reform Indigenous men, and women. An Indigenous family violence approach takes into account historically relevant factors in Indigenous women’s lives, such as dispossession, loss of land, inter-­ generational trauma, stolen children and mass incarceration. Further, there is a significant disconnect between the political demands of Indigenous women and mainstream feminism. Mistrust of mainstream organisations runs deep. From an Indigenous perspective, they maintain the colonial matrix of power and have devastated Aboriginal families and communities, removed children and destroyed family life. The “DV sector” fractures and neutralises the specific biographies of Indigenous women and transforms them into another “minority” or “women’s group”. Deborah Bird Rose (1996, 6), views such incursions as “deep-colonising” practices, that either deliberately, or unintentionally, erase and suppress the experiences of Indigenous women (also see Marchetti 2006). Indigenous women have experienced violence and wilful indifference from agencies claiming to be there to help them. Simply extending the reach of mainstream agencies further into Indigenous place does not guarantee safety, unless these agencies work to achieve cultural competency. Being surrounded by mainstream agencies does not ensure safety for Indigenous women. In some instances, it can hasten their death, such as the case of Ms Dhu. This case reinforces the point made forcefully by Aboriginal women in our research, that Aboriginal women cannot necessarily count on a sympathetic response when victims of violence and experiencing suffering and pain. So embedded are negative stereotypes of Aboriginal women in the white collective consciousness (Blagg et  al. 2018, 54). While there have been attempts to broaden mainstream approaches to domestic violence by acknowledging the strengths of Indigenous culture these still rest within an essential Western worldview. Expressed simply, the notion of domestic violence fails to capture the nuances and complexities of conflict in Indigenous communities. This is because the notion of domestic violence is mono-causal, whereas Indigenous women’s perspectives on violence tend to be multi-causal and lateral—co-existing with other forms of oppression, notably from the state.

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Decolonising Processes Stereotypes of Aboriginal women as helpless, hopeless victims continue to haunt family violence policies and practices. Innovations by Indigenous women disturb this dominant picture and are often ignored by white feminists and mainstream organisations. For example, in places where Aboriginal women, including Elders, have created their own place-based services they have brought a cultural dimension to women’s safety. The Aboriginal women’s shelters in Kununurra and Warmun (in the Kimberley region of Western Australia) are supported by committees of women Elders and placed on women’s law ground where men are banned. They have strengthened the authority of culture by ensuring that sacred women’s objects (that men cannot look upon) are kept in the premises (Blagg et  al. 2018, 12). Senior Warlpiri women from the Warlpiri “triangle” (Yuendumu, Ali Curung and Lajamanu) have followed a similar model. The consensus was that these measures deterred men from breaking in to safe houses to get at women. It is hard to imagine how a non-Indigenous, multi-agency committee could imagine, let alone create a place like this. The decolonising process involves expanding the role of Indigenous owned and place-based processes and services, that are working from a position of cultural security and embedded in Indigenous forms of knowledge. Working from within a decolonising framework means to view the differences of experience and perspective between Indigenous and non-Indigenous women from within an historical framework. For women from the Global North, history is the struggle for emancipation and equality: an important issue, for example, was the right to control fertility, as exemplified in Roe v Wade 410 U.S. 113 (1973)—the touchstone for Western feminist demands. For many Indigenous women the struggle against the violence of colonisation and forms of genocidal social engineering  (involving the state stealing Aboriginal children from their mothers) trumps these concerns. Settler colonisation requires the elimination of Indigenous Laws, social relations, connection with place and attachments to family. Social policies were geared towards reducing Indigenous fertility and re-engineering family life—as the family was the place where Indigenous culture was reproduced (Blagg et al. 2018, 64). Indigenous women were and continue to be the selected targets of these policies

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(Dodson 1991). It is not surprising, therefore, if Indigenous women assert “rights” in terms of the right to reproduce and rear their children rather than feminist demands for reproductive rights; or that they see the right to family itself as a radically decolonising practice. They may see the responsibility to keep family together as a primary imperative, even where this enhances the risks to their own safety. We should also celebrate and respect Indigenous women’s capacities, strength and resilience, including in contexts of family violence, and build structures on this foundation.

Healing and Decolonisation Healing involves the continual strengthening of Indigenous self-­ determination on a collective and personal level (Cox 2008, 18). Ultimately it requires eradicating contemporary colonial structures of social oppression, for without systemic decolonisation, Indigenous people will continue to be retraumatised from settler colonial interventions. Indigenous communities and organisations challenge these structures through building initiatives to support and heal Indigenous women. The work of these Indigenous organisations strengthens bonds and relationships, among people and with Country (Cox et al. 2009, 154, 161). It also enhances the social and emotional well-being of Indigenous users by operating in a holistic, strengths-based framework, contrary to the siloed approach that non-Indigenous agencies adopt. Indigenous healing approaches are centred on Indigenous ways of knowing, doing and being (Sherwood et  al. 2015, 186–187, see e.g. Murrigunyah 2019). Healing programs embed Indigenous women in their communities, include their children and support family relationships (Human Rights Law Centre 2017, 20; Australian Law Reform Commission Report 2017, 369). For example, Waminda South Coast Women’s Health and Welfare Aboriginal Corporation (2018a) in New South Wales empowers Aboriginal women and their families to have control over their own well-being. It provides opportunities for healing, health, fitness, job support wellbeing, art, culture, knowledge sharing and networking. Its healing space, known as Balaang Gunya—“women’s

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place/home”, was created with local Elders and Aboriginal women to facilitate Aboriginal women to “gain perspective, heal, revitalise and reconnect to self, community, culture and country” (Waminda 2018b). Waminda expressly works in resistance to the oppressive interventions confronting its Aboriginal women, including in the child protection system and criminal justice system. In the remote Kimberley region of Western Australia, the Marninwarntikura Women’s Centre in Fitzroy Crossing is a healing centre developed and led by local Aboriginal women to heal their women. Marninwarntikura (2019) is a Walmajarri word that means “women who belong to this region, this Country and each other, have come together”. Marninwarntikura Women’s Centre supports Fitzroy Valley women and their families (especially young people) by encouraging safety and well-­being, fostering leadership and financial independence. It provides activities, mentoring, support, parenting programs, advocacy and access to culturally sensitive and respectful services, and offers a place for women to share their experience and stories. The Aboriginal women running the centre have firsthand stories and knowledges relating to Aboriginal women’s experience (Blagg et al. 2018, 29). These women are in a position to respond appropriately and effectively to support and empower Aboriginal women within the community, as opposed to non-Aboriginal institutions that regard communities and Aboriginal culture as a problem (Aboriginal and Torres Strait Islander Social Justice Commissioner 2011, 79, 130). Their approach is holistic and geared towards caring for upcoming generations, rather than providing a narrow response to family violence that is reminiscent of white institutions. In Sydney’s inner-city urban setting, Mudgin-Gal (meaning “Women’s Place”) is an Aboriginal organisation “run by Aboriginal women, for Aboriginal women” (Mudgin-Gal circa 2011, 2). It offers a “safe haven” and active, peer-to-peer support for women, girls and their families (The Redfern Foundation n.d.). It provides mentoring, support for homeless Indigenous women and women experiencing family violence, and programs to empower Aboriginal women and girls to become role models for their own children, families and communities. Co-located with Mudgin-Gal is the Sydney group of Grandmothers Against Removal

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(GMAR). This group is concerned with supporting Aboriginal mothers and grandmothers whose children and grandchildren (“grannies”) are in the child protection system. It runs workshops and clinics, provides outreach and organises rallies against child protection agencies to strengthen Aboriginal families in their fight to have their children returned to them (Anthony 2016, 26; also see Sherwood 2015; Anthony et al. 2020). The importance of Indigenous healing programs has been shown in the Aboriginal Girls Circle project which was conducted in Dubbo, New South Wales (NAPCAN 2014). The local community was provided with a platform to control the process, including through the leadership of local Elders. Consequently, at the core of the program was Indigenous culture, knowledge and values (NAPCAN 2014, 3, 4, 26). By centring culture in healing programs, young Aboriginal women felt empowered in their capacity to honour their cultural  connections and this increased their self-esteem, improved their wellbeing and developed cultural identity and security (NAPCAN 2014, 3, 4) (see Anthony et al. 2020).

“I Am Here, I Am the Solution” Rather than zeroing in on weakness and dysfunction (the “deficit” model), Indigenous women’s healing, well-being and place-centred approaches privilege a strengths-based stance, requiring intervention strategies that build upon, and build up, structures of resilience in Indigenous communities. In step with this book’s “contrapuntal” method, we argue that thinking around violence in Indigenous communities needs to be decolonised. To begin with, we need to be constantly vigilant to the ongoing systemic violence directed at Indigenous women and children by the settler state. The settler state’s self-appointed role as the saviour and protector of Indigenous women and children continues to have a devastating impact on Indigenous peoples. The agencies tasked with intervening in family violence, the police and family and children’s services, have been front and centre of strategies of dismantling Indigenous families: indeed, they are often viewed as the problem by Indigenous women (Blagg et al. 2016).

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Western portrayals of Indigenous victims attribute blame to the Indigenous society and particularly its men. The story of female victims is also a story of the offensiveness and wrongfulness of Indigenous men and Indigenous culture. The stereotype of the helpless Indigenous woman is matched by the paternal and righteous role of the state in coming to her rescue. It enables her culture and community to be presented as backwards and barbaric vis-à-vis the colonising law as enlightened, civilising and protective. We assert the need for a paradigm shift that mobilises and strengthens community responses to the problem of violence, rather than further empowering and resourcing mainstream agencies, the police and courts (as presently configured). Indigenous women involved in one recent project (Blagg et al. 2018) wanted to see a fundamental shift in the way funding for services affecting Indigenous families is delivered, away from the criminal justice system and mainstream “helping” NGOs that extend white controls in the name of diversion.

Social and Emotional Wellbeing and Cultural Health Social and emotional wellbeing (SEWB) traverses a range of issues facing Indigenous people, from unresolved grief and loss, trauma and abuse, family violence, removal from family, substance misuse, family breakdown, cultural dislocation, racism and discrimination, and social disadvantage. SEWB is connected to cultural, rather than simply physical health (as in the western medical model of health that disconnects the body from its place in history, society and spirituality). We suggest that a paradigm shift in family violence policy settings and other interventions into Indigenous women’s lives be informed by a SEWB philosophy. This would mean that rather than even speak about interventions and responses, we would adopt the language of “self-determination”, “decolonisation” and wellbeing for Indigenous women. Increasingly, it is recognised that policy areas relevant to SEWB are complex and overlapping, extending “well beyond the influence of health and mental health systems to encompass education, Law and Justice, human rights, Native Title, and families and communities” (Zubrick et al. 2014, 93).

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Under the SEWB approach, connection with law, cultures and spirituality are protective factors in terms of vulnerability to the kinds of problems that create family violence. The settler colonial state along with Western feminism casts Indigenous women as docile victims, especially to the violence of Indigenous men. This focus renders the settler as an innocent bystander with no responsibility for creating the situation. White feminist theories further redeem the settler state from complicity in community violence. The state is able to project itself as nothing more than a concerned party charged with responsibility for intervening to save Indigenous  women and children from Indigenous men and their fractured, dysfunctional lives. Postcolonial theory (see Table  9.1) identifies the epistemic victimisation of Indigenous women that requires they are “saved” from their own culture to justify the epistemic violence of the coloniser (see Spivak 1985, 1988; Mani 1998, 2). These constructions, particularly as they relate to victims of sexual violence, not only inform law and order approaches to Indigenous communities (more police, more prisons, “governing crime”), but broader policies in relation to the paternalist governance of Indigenous communities. This has impact not only for Indigenous men, but also (and sometimes more acutely) Indigenous women. While there may be some relief through police presence (the concern is more in relation to quality rather than quantity of policing), government coercive responses to Indigenous victimisation generally run against calls by Indigenous women for more empowerment and protection from within their community, including women’s spaces, safe houses, night patrols and alcohol-­free zones that are overseen by Indigenous women.

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Table 9.1  Carceral feminist criminology versus decolonised criminology Carceral feminist criminology

Postcolonial criminology

Research focus Reform of the punitive settler justice system. The police response. Criminalisation and sentencing. Male violence.

Empowerment of Indigenous societies and self-determination of Indigenous women. Intersectoral analysis. Decolonisation. Community healing, holistic and place-centred responses. Harms from state violence.

Theory/ Violence against women. Epistemology Male power. Patriarchy. Gender equality.

Oppression of First Nations, colonisation. Inter-generational and ongoing trauma and suffering.

Researchers and research process

White feminists in universities, the Domestic Violence Sector, and government institutions

Local Indigenous organisations (men and women) empowered to design and develop programs, and working side-by-side with institutions.

Ethics

Deficit-based: Risk-­focused. Indigenous men classified as dangerous, Indigenous women as victims.

Strengths-based: Focus on empowerment/building capacity/benefits to community as a whole.

Research process: engaging participants

“Top down” by non-­ Indigenous people. Justice agencies as accredited sources. Focus on institutions.

“Bottom up”, based on meaningful relationships and understanding of issues. Place-based methodologies. Indigenous women and men, Elders as accredited sources and researchers.

Selective analysis of Research process: Data quantitative “data” (only strictly relevant to analysis and research questions) and outcomes omission of data deemed irrelevant

Quantitative and qualitative analysis reviewed according to issues raised by participants in community, and analysis produced and reviewed by Indigenous organisations.

Research outputs

Information for communities/ Indigenous advocacy/activism/ sovereignty.

Criminology journals; official reports. Mainstream conferences

(continued)

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Table 9.1 (continued) Carceral feminist criminology Impacts

Postcolonial criminology

Generating criminology and Responsive to needs of First Nations and building feminist knowledge. Indigenous capacity to affect Policy reform that change through their own reinforces a focus on means and in their own punishment. interests. Supports a strategy of decolonisation.

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Royal Commission Materials Elferink J (2017b) Transcript of Proceedings. In the Matter of a Royal Commission into the Child Protection and Youth Detention Systems of the Northern Territory, 28 June.

10 Hybrid Justice (i): Indigenous Sentencing and Justice Planning

Introduction: Hybrids, Hegemonies and Inter-­ cultural Struggles in Indigenous Sentencing Unlike social justice reform in the Global North, fixated on contestations within the nation state, Global Indigenism is concerned with the extending zones of inter-cultural dialogue, and working within liminal spaces between worlds to transform narratives. Homi Bhabha (1994, 38) describes this as a “third space” or an “in-between space” where translation and negotiation define cultures rather than the exclusive expressions of the colonised or coloniser. In enlivening this third space, Indigenous struggles do not seek to capture mainstream political power or legal jurisdiction as an end in itself (see Chap. 3). Rather, it is a means to deepen Indigenous place-based and place-centred forms of political, social and legal organisation. This empowers Indigenous people, connects them to Country and culture, and facilitates collective healing created by the wounds of settler state sovereignty. This chapter asks whether sentencing—as a site of punishment, rehabilitation and integration— can do more than further objectives of state law and order, and instead augment Indigenous social orders? Can Indigenous innovations in © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_10

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sentencing embody inter-cultural struggle and negotiation or are they at the mercy of state control? Where inter-cultural practices operate to further Indigenous objectives, they challenge the whiteness of legal traditions, discourses and processes and provide alternatives to the criminal justice apparatus of the Global North: police, prisons, corrections and Deluth-like diversions (See Chap. 9). This chapter focuses on the role of Indigenous sentencing courts, Indigenous Law and Justice Groups and Indigenous justice reports (e.g. Gladue Reports) in sentencing across Canada, Australia and Aotearoa/New Zealand. By privileging Indigenous perspectives and knowledges, Indigenous sentencing innovations create spaces for a negotiation between the laws of the settler state and Indigenous nations. At their core, these sentencing initiatives reinvigorate Indigenous legal and cultural values relating to the authority of Elders, respect for Indigenous Knowledges and holistic and collective responses to individual needs. The existence of the “third space” reveals that the  colonial state has not achieved the “consecration of hegemony”, to use the words of Ella Shohat (1992, 112), but an incomplete hegemony. While the third space is a syncretic space where cultures imbricate on a lateral plane, the plane can become structured by the settler state’s impetus to hierarchise, dominate and universalise legality. When its usefulness to the state has run its course, it can quickly be subsumed and expunged within the dominant imperial structure. Bhabha describes the third space as a “stairwell” between up and down (in Kuortti and Nyman 2007, 3), but the door can nonetheless be shut to its passage. This is one of the risks, according to Shohat (1992, 105), of postcolonial theory and its emphasis on fluidity and hybridity: it does not sufficiently account for “political and economic structural domination”. The hegemony still lurks in the background and shapes “structural conflicts” between the colonised and coloniser (1992, 106). Against the third space, the state continues to sustain practices that uphold white colonial power over colonised people (Said 1993, 23). These can occur through subtle ways in which the authority of the criminal justice system shapes settler colonial relations, or through more explicit displays of power. We have found in our research, as demonstrated in this chapter on Indigenous sentencing innovations and the ­following chapter on Night Patrols, that the more the state resources these spaces, the greater the regulatory requirements and the less agency

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afforded to Indigenous people. In the process, the state attempts to reshape hybrid formations in its own image, such as by reconstituting Night Patrols in line with policing roles. However, the alternative expressions of state control can be even more devastating. The denial of state resources can cripple Indigenous organisations and programs. At its most malign, the prohibition of Indigenous hybrid justice practices can invalidate their operation altogether, such as occurred when the Northern Territory government and courts invalidated and dismantled Aboriginal Community Courts in the Northern Territory. Attempts by the settler state to extricate power from the third space is counterbalanced by the Three Rs that we have discussed throughout this book: Indigenous Resurgence, Refusal and Resistance. Measures to strip Community Courts of their powers, for instance, prompted reinvigoration of Law and Justice Groups, which have in turn created avenues for Aboriginal people in remote Northern Territory communities to influence the sentencing process and strengthen their communities and laws. Aboriginal organisations have also responded by pushing for their reinstatement as part of an Aboriginal Justice Agreement between the Northern Territory Government and Northern Territory Aboriginal communities.1 Resistance to state control of Indigenous Law, justice and sentencing initiatives is part of the interstruggle of colonised people against the coloniser’s universal control, which constitutes the Third Space. Hybrid justice decentres authority and invokes Indigenous place-­based and place-centred justice, including in the process of generating these spaces (Sepahvand 2012, 898).

 he Legacy of a Universal Colonial Criminal T Justice System: The Hybrid Backdrop Chapter 5 traced the colonial legacy that cemented a unilateral and universal criminal justice system in Australia on the terms of the British imperial nation. Originally in Australia, British laws directly applied to  Aboriginal Justice Agreements are formal agreements between governments and Aboriginal and Torres Strait Islander communities to work together to improve justice outcomes. They have been negotiated and implemented across Australia at various times since the late 1990s. Very few still remain current. In the state of Victoria, the Aboriginal Justice Agreement is in its fourth phase (see Victoria State Government and Aboriginal Justice Caucus 2019) and in the Australian Capital Territory it is in its second phase (see Australian Capital Territory Government and Aboriginal and Torres Strait Islander Elected Body 2019). See generally on Aboriginal Justice Agreements: Allison and Cunneen (2010). 1

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the colonies. With the gradual inception of representative government over the nineteenth century, Australian colonial parliaments wrote their own  laws, with  oversight by the British  Government. Today Australia, along with New Zealand and Canada, remain constitutional monarchies, with ties to the British Commonwealth and the Queen of Britain as their Head of State. The politico-legal system, including the nature of representative democracy, legal institutions and the role of judicial precedent (which retains many colonial legal principles) continue to reflect British history that stems from the Magna Carta. In Australia, none of its politico-legal institutions or laws were established in consultation with or with reference to Indigenous Laws and places. The Australian Constitution does not so much as mention Aboriginal and Torres Strait Islander peoples. The practice of universalism is no more vivid than in the criminal justice space. While inroads have been made in land law, such as native title, to recognise a dual property system, no equivalent exists in the criminal justice system (see Walker v New South Wales (1994) 182 CLR 45). Criminal and other colonial laws exist in “space” rather than on “place”. They applied to Indigenous people even before settlers had made contact with local people or their land, and flow from grand British declarations to sovereignty of the entire Australian mainland and its islands in the early nineteenth century (subsequent to sea circumnavigation rather than land passage). Some Aboriginal land was not seen by the British until the mid-twentieth century in central Australia when it first launched atomic missiles as part of a testing program at Maralinga. Having avoided the tests and the British attempts to “clear” the land of Aboriginal people, first contact with the Pintupi people did not eventuate until the 1980s in the Gibson Desert (Mahony 2014). Without their consent or knowledge, Pintupi people were subject to Australian laws. This represents the ­experience of all Aboriginal and Torres Strait Islander people in Australia: they were subject to laws that had nothing to do with them and were not made or enforced with them in mind (except for those laws purposively enacted to control and eliminate Aboriginal people). Indigenous people, however, have continued to practise their own laws and sought to have them recognised in the courts and parliaments. This has been a strong impetus for sentencing innovations and other reforms.

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However, there has not been formal recognition of Indigenous Laws in Australia or a treaty  like in other settler colonies. The High Court of Australia in Walker v New South Wales (1994) 182 CLR 45 rejected the submission that Aboriginal law survived the assertion of British sovereignty. It held that Indigenous Laws could not co-exist with Anglo-­ Australian laws, because Indigenous people were subject to Australian laws, which applied universally (1994, 48–49). This position was reiterated by Australian Prime Minister John Howard in 2006 when he stated that attempts to recognise Indigenous Laws were “misguided” because there is only one “Anglo-Australian law” that protects and applies to all Australians “in all its dispensations” (on Yaxley 2006). Indigenous Laws are sourced in the land and provide for the survival of the land, its ecology and people (Black 2011, 16). Laws exist as part of a holistic way of being Indigenous people on place. They co-exist with other tenants of Indigenous culture, including “skin” relationships, languages, ceremonies, and, at the centre, Country (land, waterways and ecology). In Warlpiri Law and culture, this is known as Ngurra-kurlu (Pawu-Kurlpurlurnu et al. 2008, 1). Indigenous Laws regulate Indigenous Knowledges, conduct and relationships among people and between people and the land (see Law Reform Commission of Western Australia 2006, 64). Unlike Western law that is separate and siloed, Indigenous Laws are intimately linked to social and cultural life, and are determined by the needs of each Indigenous society. Punishment systems are embedded in Indigenous Law systems, providing “specific sanctions for noncompliance” of Indigenous Laws, including for violations of relationships, ceremonies, sacred sites and responsibilities (Law Reform Commission of Western Australia 2006, 64; Anthony and Chapman 2008). Unlike Western law that exists in space, Indigenous Laws are not uniform, but discretely reflecting the hundreds of heterogeneous Indigenous societies in Australia today, although with some common themes around respect for Country. Indigenous Laws were sorely tested with colonisation, not only because of British imposition of legal and social norms and, but also, importantly, because of the displacement of Indigenous people from their land, and severing their connections to Country and law systems. This displacement has been highly uneven across Australia, as has the capacity to continue Indigenous legal systems.

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Some Aboriginal and Torres Strait Islander people in Australia continue to practise their criminal laws that include dispensing an array of punishments for breaches of their laws. Sanctions vary in nature depending on the offence and the Indigenous nation, but commonly exclude prison as a penal option. Māori scholar and activist Moana Jackson (2016) points out that Indigenous people did not have prisons before colonisation, and that it is not a word in the Māori vocabulary. He refers to other forms of recognising wrongs and making amends for harm in Indigenous societies, especially collective reparation. Indigenous Law systems have capacity for adjudication, redress, compensation and forms of punishment that protect the community. In Australia where such systems may have been diminished by colonisation, there are still ways of practising Indigenous laws, such as shaming behaviour through denunciation by Elders and avoidance. Our concern is not to detail these laws, many of which are governed by confidentiality, but to highlight hybrid models that draw on Indigenous Law principles and relationships in negotiation with colonial legal processes. Marchetti and Daly (2007, 420) state, for example, that Indigenous sentencing courts recognise and respect Indigenous cultures and laws, but do not adopt them in the courts: Rather, they are using Australian criminal laws and procedures when sentencing Indigenous people, while allowing Indigenous Elders or Respected Persons to participate in the process. This differs from a court’s recognition or application of Indigenous customary laws at sentencing, as for example, when Indigenous punishment practices such as spearing, shaming and banishment are taken into account. (footnotes excluded)

Although Marchetti and Daly broadly give expression to the work of Indigenous sentencing courts, these hybrid justice formations, like others, are not static. Indigenous people continue to push their boundaries to assure that they are active players in the negotiation. Accordingly, in the Northern Territory there have been some developments where Indigenous Law has been honoured in the process of sentencing, which is discussed in this chapter. The section below first considers some developments in sentencing principles where Indigenous people have sought to have  their laws, cultural identity and circumstances recognised by mainstream sentencing courts.

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 ybridity in Criminal Sentencing Doctrines: H Challenging or Entrenching the “Superiority of the Occident and Inferiority of the Orient”? Said’s (1978, 5) superiority / inferiority binary in the quote above manifests in the criminal sentencing of Indigenous people: the Anglo-colonial court passing judgment on the wrongful Indigenous Other. Denunciation is expressed from above while the Indigenous person is expected to be contrite. The classic settler colonial sentencing court is hierarchical and the court setting replicates British court architecture and design (see Anthony and Grant 2016). They wrest power in the judge and ignore the lawful rights of the Indigenous defendant (such as to property, custom or language). This section considers whether hybrid approaches to sentencing principles—where sentencing magistrates and judges account for both white legal principles and Indigenous circumstances, cultural rights and expectations—maintain Said’s binary or create spaces for negotiation and inter-cultural struggle. The birth of Aboriginal legal services (ALSs) has been crucial for the creation of hybrid spaces in sentencing hearings. Itself a hybrid space, the ALS was established in Australia in the late 1960s and 1970s as part of the self-determination movement, especially in Redfern, Sydney (see Anthony 2018). Aboriginal activists recognised the need for an Aboriginal-­ owned and oriented legal service to respond to the mass incarceration of Indigenous people following their release from “protective” enclaves and settlements into towns and the ambit  of  racist policing  (see Chap. 7). ALSs advocate for the legal rights of Aboriginal people and provide a culturally competent legal service (see e.g. National Aboriginal and Torres Strait Islander Legal Services 2019). In the sentencing process, they tune sentencing submissions to illustrate the background and cultural circumstances of their Aboriginal clients and to inform the court on matters such as systemic racism, and how these should be addressed in sentencing (e.g.  through reducing imprisonment  and promoting healing). The premise of the submissions on Aboriginal circumstances was that it would promote individualised justice and substantive equality in a system that was biased against Aboriginal people and otherwise perceived Aboriginal people through the lens of stereotypes (such as being deviant, dangerous and drunk).

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In the 1980s and 1990s, sentencing courts began to recognise, following the advocacy of Aboriginal legal services, the role of Aboriginal cultures, laws and punishment systems as well as disadvantage and deprivation in lives of Aboriginal people who came before them (e.g. R v Davey (1980) 2 A Crim R 254; Goldsmith v R (1995) 65 SASR 373; R v Shannon (1991) 56 A Crim R 56). At this time, the courts, especially in northern parts of Australia, accepted that: (a) there was a degree of political-legal plurality arising from co-existing Indigenous and non-Indigenous (settler colonial) laws and this had an effect on the Aboriginal people in their courts; (b) that inequality in society contributed to Aboriginal Australians entering the criminal justice system; and (c) that there was a role for the specialist advocacy of Aboriginal legal services and expert reports from Aboriginal people on their communities and cultures (i.e. there was a space for negotiation between the Anglo-Australian legal culture and the Indigenous legal process). For example, in Walden v Hensler ((1987) 163 CLR 561) a Gungalida Elder from North Queensland who was sentenced to prison for shooting a bush turkey in violation of the Fauna and Conservation Act 1974–79 (Qld), argued that he should receive lenience because the killing was in accordance with his customary law. The High Court of Australia accepted that the cultural circumstances of the offender were relevant for sentence mitigation (although rejected the argument that it provided a lawful defence). Cultural considerations in sentencing also came to life when Indigenous punishment was an issue before the courts. In a number of cases in the Northern Territory,2 the Supreme Court accepted evidence from the Indigenous community that Indigenous Law punishment had or would denounce the crime and teach the offender a lesson. These cases also recognised that Indigenous Law punishment enabled the offender to make  R v Mamarika (1982) 5 A Crim R 354; Jadurin v R (1982) 7 Crim R 182; R v Minor (1992) 105 FLR 180; R v Miyatatawuy (1996) 87 A Crim R 574; R v Poulson (2001) 122 A Crim R 388. 2

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amends with the community and victim (whether this be through undertaking ceremony, providing reparations, spearing, shaming or apologies). The court held that Indigenous Law punishment should, accordingly, provide grounds for mitigation because it substantially performs the punitive and rehabilitative work of sentencing (R v Minor (1992) 105 FLR 180). The courts also fashioned sentences to enable young offenders to go into the care of Indigenous Elders so they could be immersed in cultural practices and ceremonies (Jabaltjari v Hammersley (1977) 15 ALR 94) and to require attendance at meetings with clans (Munungurr v The Queen (1994) 4 NTLR 63). In the Northern Territory case of R v Yakayaka and Djambuy (2012, Unreported, Supreme Court of Northern Territory, Riley CJ, 17 December), the Supreme Court sentenced a Yolŋu couple, convicted of cannabis offences, to supervision by their Yolŋu community (as opposed to Northern Territory Corrections). Northern Territory Chief Justice Riley stated in relation to the young Mr Djambuy, “I am told he will be under strict supervision (under Yolŋu Law) within the community by community members for a significant period and that would seem to me to be an adequate response to any need for supervision in his circumstances” (Gosford 2014). The couple were banished to an isolated area— which the court described as a “special Yolŋu prison” under the supervision of Elders for eight months (see in Gosford 2014). Invoking the word prison to describe the exile enabled the court to analogise Western ­punishment (given the concept of prison and penal confinement does not exist in Indigenous Law and vernacular), but nonetheless provided an avenue for hybrid justice. An analogous inter-cultural negotiation occurs in bail applications, where the Indigenous people have sought bail for the purpose of undertaking “traditional” punishment. Following submissions by ALS lawyers and evidence from the Aboriginal community, the Northern Territory Supreme Court determined in a number of cases in the late twentieth and early twenty-first century that bail could be granted for the purpose of Aboriginal law punishment. It recognised its important role in reconciliation and healing of Indigenous communities following a crime, on the provision that the Aboriginal person would later return to the court to be tried and sentenced. This has been described as “weak” legal pluralism (Douglas

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2005, 141; Finnane 2006, 4). This gesturing towards pluralism did not stop courts from requiring supervision of the otherwise private traditional punishment process, by requiring the presence of corrections officers (at a spearing) or stipulating the conditions for the Aboriginal person’s participation in a good behaviour bond (e.g. Munungurr v The Queen (1994) 4 NTLR 63). Sentencing legislation in Aotearoa/New Zealand provides a modicum of hybridity; enabling Māori evidence to be submitted by family, whānau, community, and so on, and requiring judicial consideration under sections 8(i) and 27 of the Sentencing Act 2002 (NZ).3 Relying on such evidence, courts have recognised that Māori culture promotes “a more stable and more responsible lifestyle” than imprisonment (R v Nathan 1989). In The Queen v Rawiri and others (2009, High Court of New Zealand CRI-­ 2007-­ 032-5294, Simon France J, 14 August)—where the offender drowned the victim pursuant to a belief that the victim was possessed by an evil spirit (mākutu) and where there was an absence of malice—the High Court held that Māori culture was a relevant “context” for sentencing mitigation (2009, 88, 91–93). New Zealand courts have also mitigated custodial sentences on the ground that Māori cultural responses are more effective in sending a message to the offender. In R v Huata & Huata (Unreported CD, Auckland District Court, CRI-2003-041-5606, 30 September 2005, 138) the Auckland District Court noted that the defendant “will suffer under the Māori criminal institution of whakamaa or shame, and will have to carry that for the rest of her life”. In these ways, hybrid criminal justice considerations—that account for Māori and Pākehā objectives in relation to punishment and safety—have informed sentencing processes and outcomes. The courts have equally considered the effects of colonisation on Indigenous peoples and communities, at least through a refracted lens. In the early 1990s, courts began hearing arguments from ALS lawyers on systemic racism ensuing from colonisation. The seminal case of R v Fernando ((1992) 76 A Crim R 58) received submissions on the Royal  Some Australian states and territories have introduced sentencing legislation to accommodate cultural background (see Crimes (Sentencing) Act 2005 (ACT) s 33(m)) or consideration of “cultural” submissions made by representatives of an Aboriginal or Torres Strait Islander community (Penalties and Sentences Act 1992 (Qld) s 9(2)(p)). 3

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Commission into Aboriginal Deaths in Custody (1991) to evidence the discrimination Aboriginal people face in the justice system and broader society. Counsel for the Aboriginal defendant from the remote New South Wales town of Walgett, argued that sentencing provides a vehicle for the atonement of this disadvantage. The Supreme Court in R v Fernando ((1992) 76 A Crim R 58) went some way in accepting these submissions, recognising that disadvantage and the alienating effect of imprisonment were mitigating grounds, although not significantly and without identifying the systemic impact of colonisation.4 Aboriginal defendants have also successfully argued that they should receive lighter sentences due to the adverse, life-long consequences of being removed as a child by the state and the ongoing impacts of the policy of the Stolen Generations (R v Mustey [2001] VSC 68, [13]; R v Fuller-Cust (2002) 6 VR 496, 520) and where they have been otherwise affected by racist policies and practices. In Neal v The Queen (1982) 149 CLR 305, the Aboriginal defendant who lived on Yarrabah Reserve, Queensland, submitted that his act of assault (spitting on a white officer on a reserve) was an act of resistance. This was accepted by a number of judges on the High Court of Australia on the basis that the racism on the reserve exculpated his actions. Indeed, Judge Murphy stated, “human progress owes much to the efforts” of “agitators” such as Percy Neal (1982, 318). In Canada, the last two decades have seen courts take judicial notice of systemic racism and colonisation (R v Gladue [1999] 1 SCR 688; R v Ipeelee [2012] 1 SCR 433). This is a step further than the stance of the Australian High Court, which recognised Indigenous deprivation as relevant to individual cases, but rejected the systemic recognition of racism and colonisation (Bugmy v The Queen (2013) 249 CLR 571, 594); and of the New Zealand Court of Appeal (Mika v The Queen [2013] NZCA 648, 12). In R v Gladue and R v Ipeelee, the Toronto Aboriginal Legal Service made representations on the effects of colonisation on the over-­ imprisonment of Aboriginal Canadians, and its relevance to interpreting  A number of cases are frequently cited for this proposition, including Juli v R (1990) 50 A Crim R 31, Rogers & Murray v R (1989) 44 A Crim R 301, R v Yougie (1987) 33 A Crim R 301, R v Friday (1984) 14 A Crim R 471, and R v Bulmer (1986) 25 A Crim R 155. 4

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718.2(e) of Canada’s Criminal Code that promotes sanctions other than imprisonment “with particular attention to the circumstances of aboriginal offenders”. Both the advocacy for introducing this legislation and promoting a progressive interpretation sought to make courts recognise their responsibility in over-incarceration and remedying its incidence. Accepting ALS submissions on the interpretation of the Code, the Canadian Supreme Court stated in 1999 that the remedial purpose of the section is to “ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing” (R v Gladue 1999, 737). Further, Aboriginality “played a part in bringing the particular aboriginal offender before the courts: including due to dislocation, discrimination, child removal, socioeconomic disadvantage, substance abuse, and community fragmentation” (1999, 724, 737). The Court identified the need for innovation in sentencing processes that develops unique Aboriginal pathways for punishment, healing, and reform (1999, 725–728). Subsequently, R v Ipeelee (2012)—which was appealed to the Supreme Court because of the failure of lower courts to give due weight to Aboriginal circumstances and the rising Aboriginal prison rates (see Roach 2009)— the Supreme Court stated that courts “must” take judicial notice of the history of colonialism, displacement and residential schools, and their continuing adverse ramifications for Aboriginal lives (R v Ipeelee 2012, 469). Notwithstanding the genesis of inter-cultural negotiation in sentencing hearings, the current tendency of Australian and New Zealand sentencing courts and parliaments is to confine submissions on Indigenous circumstances, cultures and laws (see Anthony 2013). As part of the Northern Territory Intervention (see Chaps. 8 and 9), the Commonwealth Government restricted cultural and customary law considerations in sentencing (Northern Territory National Emergency Response Act 2007 (Cth) s 91; Crimes Act 1914 (Cth) s 16AA). The ALS challenged the limits of this legislation in R v Wunungmurra ([2009] NTSC 24), arguing that Aboriginal culture was a relevant background factor. The Northern Territory Supreme Court supported this proposition in a narrow sense, claiming it could provide a context for the crimes and prospects for rehabilitation, but not the seriousness of the crimes. The legislation’s restriction on cultural considerations was given effect in another case where, a construction company

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built a toilet on a sacred site. The Aboriginal Areas Protection Authority argued that the $500 fine imposed on the company was inadequate given the serious damage it inflicted on the Aboriginal community. However, the Supreme Court ruled against the relevance of cultural factors in refusing to increase the fine (Aboriginal Areas Protection Authority v S & R Building and Construction Pty Ltd [2011] NTSC 3). The legislative backlash was in step with developments in sentencing jurisprudence that had begun to revert from allowing cultural considerations in sentencing to punitive approaches that relied on community protection and deterrence to hand down longer prison sentences (e.g. Amagula v White [1998] NTSC 61; Wurramara (1999) 105 A Crim R 512.). Defendants from urbanised Indigenous communities in Australia were regarded as not “traditional” enough to “benefit” from Indigenous considerations in sentencing (see R v Ceissman (2001) 119 A Crim R 53; R v Morgan (2003) 57 NSWLR 533), and Indigenous people in remote communities were regarded as out-of-touch with white social norms to attract a strong message of deterrence (see Queen v Bara [2006] NTCCA 17, 8–9). The consequence of this drift in sentencing has not only been that the courts have sent a growing number of Indigenous people to prison, but also that hybridity in mainstream sentencing courts has proven to be a fragile creature. Courts have continued to denigrate the “orient”, to ­reinvoke to Said’s quote, and genuflect to the “occident”. Cunneen (2018) states that mainstream sentencing courts are a weak instrument for Indigenous justice and regards healing interventions as a more appropriate response. With this is mind, alternative sentencing courts have developed to provide more holistic considerations in sentencing and a “wrap-around” service-based response to the offender, but are these another form of “functional interculturality” or do they provide a more critical form (see Walsh 2010, 21; Chap. 6).

Hybrid “Indigenous” Sentencing Courts Indigenous sentencing courts attempt to attenuate the excesses of non-­ Indigenous domination in the court system, and reorient the court system to Indigenous protocols, structures and axiologies. They have carved

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out hybrid spaces in the coloniser’s sentencing courts since the 1990s and continue to evolve across Australia, Aotearoa/New Zealand and Canada. Indigenous sentencing courts promote a co-existence of non-Indigenous and Indigenous justice procedures through including Indigenous Elders or Respected Persons, languages, spatial settings and symbols in the mainstream court process. They unsettle non-Indigenous authority in sentencing through enlivening Indigenous standpoints and shifting the gaze from penality alone. Instead, they can offer a holistic, place-based understanding of the Indigenous person’s cultural and community circumstances. In turn, the courts can tailor sentences that respond to the needs of the individual and those affected by the crime.

Australia The seeds of Indigenous sentencing courts were planted in the late 1970s when Australian  Aboriginal community councils were empowered to make by-laws governing certain behaviours in their communities, and breaches could be heard by Indigenous people appointed as judicial officers or justices of the peace (Marchetti and Anthony 2016). These early developments morphed into the cooption of Aboriginal Elders and Respected Persons onto mainstream courts to give advice to judicial officers. By the 1990s, a number of courts formalised the process by setting up sentencing lists for Indigenous defendants that would be heard by Indigenous Elders and Respected Persons. These are variously known as Circle Sentencing (in New South Wales and Australian Capital Territory); Koori Courts (in Victoria), Nunga Courts (in South Australia), Noonga Courts (in Western Australia), Murri Courts (in Queensland) and the former Community Courts of the Northern Territory (before they were abolished, as discussed below). These courts are only available for Indigenous people who have made a guilty plea and thus submitted to a conviction on the terms of the settler colonial criminal justice system. The courts were originally formalised by magistrates and judges, with the cooperation of local Indigenous people. When Magistrate Chris Vass first accommodated an Indigenous Sentencing Court in Port Adelaide in 1999, he did so on the premise that “Aboriginal people were getting a pretty raw deal from the justice system as a whole and they mistrusted the

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system” (quoted in Daly and Marchetti 2012, 467). Over time, Indigenous people have been active agents in the formation of these courts to redress the exclusive and exclusionary settler sentencing process. They sought to ensure that Indigenous individuals and community representatives and their knowledges are respected in the sentencing process and to promote appropriate outcomes for Indigenous defendants. Although the process varies among jurisdictions and courts, it often involves participants, including Elders, sitting in a circle and collectively planning the best ways forward for the defendant, victim (where relevant) and community. The Indigenous sentencing court may consider the need for the defendant to be separated from certain people in the community or what the defendant can do to restore or reconcile with the victim. They can be convened in courtrooms or other places that bear some cultural significance for the local Indigenous community. Marchetti (2010, 271) states that Indigenous sentencing courts “transform the court process, space and outcomes” to make them more compatible with Indigenous justice concepts. They can “bend and change” the “white law” by adapting it to include Indigenous knowledges, values, designs and modes of social control in the sentencing process (Daly and Marchetti 2012, 429, 436). In these ways, Indigenous sentencing courts hybridise the court model. However, Indigenous sentencing courts do not adopt Indigenous Laws, punishment methods or procedures, instead following Anglo-Australian criminal and sentencing laws. Some Indigenous people, such as Yolŋu Elders in the Northern Territory, have expressed that Indigenous sentencing courts are too limited in their scope and that they should have discretion to impose Yolŋu Law. Yolŋu Elder and Law man Gaymarani (2011, 299) proposes Indigenous sentencing courts should comprise Yolŋu community members exclusively and apply Yolŋu Law: The people of Arnhem Land do not want the normal Court of Summary Jurisdiction. The Court of Summary Jurisdiction should always sit as a Community Court when in Arnhem Land. This Ngarra [Yolŋu] law should be the central component of the Community Court when it sits in Arnhem Land. This is one way that the Australian law and the Ngarra law can work side by side.

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Another Yolŋu Law man, Gaykamangu (2012, 248), stresses that Ngarra law sentencing options need to be routinely available to Indigenous sentencing courts, such as exile from family, community work orders, discipline by responsible Elders or compensating the victim of the crime. Gaymarani (2011, 299) contends that Indigenous sentencing courts should have complete jurisdiction over sentencing local Indigenous people, rather than operating in an ad hoc manner at the discretion of the Magistrate. This would mean that all local people would be sentenced under the same system. In their current form, Indigenous sentencing courts do not provide authority to the Elders to determine the sentence. Rather, they provide advice to the sentencing judge or magistrate, drawing on the Indigenous community’s expectations and awareness of appropriate avenues, programs and supports for the individuals involved and their families. Ultimately, the magistrate or judge determines the sentence and the extent to which the views of Elders are taken into account, if at all. This is regarded by certain Elders Yolŋu and Warlpiri communities as an inadequate model given the continuing relevance of Indigenous Laws to their lives and the role of Elders in relation to the mostly younger offenders. Moreover, in the Northern Territory, Elders communicated in their Indigenous language to the offender, making the judicial officer’s role and capacity to sentence in accordance with the views of the Elders precarious. Nonetheless, the process of involving Indigenous Elders and protocols in sentencing courts has played a role in strengthening Indigenous community social controls and community relationships (Beranger et al. 2010; Borowski 2010; Fitzgerald 2008; Morgan and Louis 2010; Blokland 2007, 10–11).

Aotearoa/New Zealand Aotearoa/New Zealand court-based initiatives mainly exist at a youth court level, although recent developments have emerged whereby Māori cultural practices are included when convening an Alcohol and Other Drug Treatment Court (AODT Court). Rangatahi Youth Courts (Ngā Kooti Rangatahi) have been in operation since 2008 and there are now two Pasifika Youth Courts operating in Auckland, which commenced in

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2010 and which mirror the principles and practices of the Rangatahi Court, for Pacific Islander youth (New Zealand Ministry of Justice 2010). Rangatahi Courts are available for all youth offenders, not just Māori youth. There are currently 14 Rangatahi Youth Courts in operation throughout the country (New Zealand Ministry of Justice n.d.). These Courts monitor Family Group Conference Plans at a marae “by encouraging strong cultural links and meaningfully [sic] involvement of whānau [extended family], hapū [subtribe] and iwi [Māori peoples or tribe] in the youth justice process” (Davies et al. 2012, 14). Their purpose is to reduce Māori youth reoffending by providing appropriate rehabilitative sentencing options. The Family Group Conference Plan, which outlines how to best support an offender to lead a law-abiding life, is compiled at a Family Group Conference that is convened by the presiding judge of the Youth Court in which the offender initially appeared. A youth advocate or social worker, the offender, their family, the victim(s), Māori Elders, and agencies such as the police are present at the Family Group Conference. A Rangatahi Youth Court only monitors Family Group Conference Plans when a victim supports the referral and the presiding judge considers it appropriate. The procedure adopted by the Rangatahi Youth Court will depend on the protocols and cultural values of the local community, but it generally begins by calling visitors onto the marae, followed by speeches and morning tea (Davies et al. 2012). Once this is complete, those present will discuss the progress of an offender against the agreed Family Group Conference Plan and will make recommendations related to bail conditions. At the conclusion of the discussion, the Elders will address the offender, after which the offender, their family, and their support people will perform a tradition called “hongi”, which involves pressing their noses in greeting (Marchetti and Anthony 2016). Concerns about this process amounting to “Indigenous cooption” by the state are raised below.

Canada In Canada, there are Indigenous-focused, court-related programs with Aboriginal participation. Court-based initiatives include the Saskatchewan Cree Circuit Court, the Alberta Tsuu T’ina Peacemaking Court (which

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are sometimes captured under the umbrella term of First Nations Courts; Johnson 2014), Aboriginal Courts (Whonnock 2008), and Circle Sentencing (which are sometimes called Peacemaking Circles; National Criminal Justice Reference Service 2001). First Nations Courts (which can be convened for matters other than criminal matters, such as family, child safety or civil disputes) use traditional forms of dispute resolution, such as “smudging with sweet grass or sage, or … eagle feathers or eagle down”, to infuse the sentencing process with culturally appropriate practices that can promote “balance and healing” (Whonnock 2008, 1). The Tsuu T’ina Peacemaking Court was the first Aboriginal Court in Canada, established in 2000, and like the Saskatchewan Cree Court operates as a hybrid court straddling both traditional provincial and peacemaking sentencing court processes. Tsuu T’ina Court hearings are held in rooms that allow people to sit in a circle, reflecting traditional practices, and Cree Circuit Court hearings are held in community centres (Johnson 2014). Aboriginal Courts tend to involve First Nations judges, prosecutors, court clerks, probation officers and peacemakers in the sentence hearing. Matters appearing before Cree Circuit Courts can also be heard in Cree language (Whonnock 2008). The purpose of these courts is to take Indigenous problem solving approaches  and techniques, including spirituality, to develop Indigenous healing plans for individuals, families, communities, and nations (Marchetti and Anthony 2016). Canadian sentencing circles are based on Restorative Justice principles (see Chap. 6) whereby the offender offers some form of restitution, makes amends to the victim, and is offered the opportunity to obtain rehabilitation; thus the community is empowered to resolve its own issues (LaPrairie 1995). Some sentencing circles are diversionary, but others, such as the first one established by Judge Barry Stuart in 1999 for the case of R v Moses ([1992] 71 CCC (d) 347), are located within the mainstream criminal justice system. Participants sit in either an inner or outer circle; the inner circle comprising those who are most involved in the discussions, such as the judge, community members, offender, victim, support people and lawyers, and the outer circle is reserved for observers. During the hearing, discussion centres on the extent to which such crimes are

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committed in the community, why the offence occurred, how it impacted on the victim(s), and what should be contained in the sentencing plan (LaPrairie 1995). An offender may be monitored during the sentencing plan, encouraging them to implement the plan and move towards healing their relationship with the victim and the community (Lilles 2002).

Indigenous Sentencing Courts as Cooption Indigenous sentencing courts and conferences have been referred to as the Indigenisation of the colonial criminal justice process (Tauri 1998; Tauri 2016; Cunneen 2008; Sutherland 2002). They are perceived as a “key colonial tool” to delegitimise Indigenous governance and laws, and constitute Indigenous buy-in to the coloniser’s criminal justice system that buttresses rather than challenges this system (Sutherland 2002). Indeed, these courts do not provide Indigenous people with a say in the determination of sentence, the sentencing framework or the laws that are applied. To this extent, they can be regarded as providing a cloak of tradition while making “no real progress … towards realizing traditionalist goals” (Alfred 1999, 27). Leading Māori scholar on critical Restorative Justice, including in relation to Family Group Conferencing, Juan Tauri (1998, 168–169), argues that Indigenising the justice system is “part of an overall cultural sensitization of policy and service delivery” that “fails to resolve Mãori concerns regarding their relationship with the criminal justice system”. Indigenous sentencing courts, like other hybrid justice mechanisms, presents a dialectical synthesis. On the one hand, they are evidence of the adaptability of Indigenous justice processes and the role of Indigenous resistance in challenging Western justice models to respond to Indigenous concerns (Marchetti 2010). On the other hand, they are regarded as a continuation of the state’s “historical ambivalence toward [Indigenous] cultural practices, except for when they can be of use to the state justice ordering” (Tauri 1998, 178; also see  Jackson 1995, 34). They project “functional” rather than “critical” inter-culturality, to use Walsh’s (2010, 21) binary. We return to some of these concerns in the latter part of this chapter.

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 ybrid Sentence Reports for and by H Indigenous People To inject Indigenous narratives and experiences in sentencing, the Toronto ALS, followed by other Aboriginal organisations across Canada, introduced Gladue Reports (following the Gladue decision discussed above) in the early twentieth century. These reports provide sentencing courts with accounts by Indigenous people of the experiences of the Indigenous community for which the defendant belongs. They address the Indigenous defendant’s strengths, upbringing and circumstances as located in a settler-colonial matrix of power (e.g. racism in schooling, child protection interventions, institutionalism, poverty, inter-generational trauma). The reports highlight the negative impact of prior government policies such as assimilation and segregation as a collective and transgenerational occurrence  unique to Indigenous peoples  (April and Orsi 2013, 11; Jeffries and Stenning 2014, 256). Gladue Reports tend to be written by Indigenous caseworkers who have a shared collective experience with the Indigenous defendant. As with Indigenous sentencing courts, Gladue Reports are only available for a small minority of sentence hearings, but nonetheless seek to change judicial understandings and discourses from being about Indigenous people to being by Indigenous people (Anthony et al. 2017). Gladue Reports are a counter-narrative to the risk analysis in pre-sentence reports prepared by corrective services (Hannah-Moffat and Maurutto 2010), which ignore culture and produce adverse outcomes for Indigenous people (Shepherd and Anthony 2018). Gladue report writers tend to be Indigenous people with a shared background with the defendant. They provide information on culturally-­ relevant and safe sentencing options (such as healing programs and support groups) (Hannah-Moffat and Maurutto 2010, 266). The Toronto ALS, in preparing the report, also provides case support for the individual and connects them with relevant services and supports. Rather than provide a general evaluation of Indigenous circumstances, which is what risk analyses produce, Gladue Reports are “tailored to the specific circumstances of [the] Aboriginal offender” (Ipeelee 2012, 469).

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Unashamedly, the Gladue Reports are also a response to the objective of the Canadian Criminal Code to promote non-carceral options for Indigenous people (see above), which is urgently needed in the face of rising prison rates. For this reason and to promote fairness in sentencing, Australian jurisdictions such as Victoria and the Northern Territory (at the initiative of Aboriginal legal services), Queensland (through Aboriginal and Torres Strait Islander Community Justice Groups) and the Australian Capital Territory have implemented or are in the process of establishing similar reports for Indigenous people  being sentenced. There are also Cultural Reports emerging in Auckland, Aotearoa/ New Zealand. In the Northern Territory, Law and Justice Groups (see the following section) provide background information on the defendant, including his or her risk and contribution to the Aboriginal community, advice to the magistrate on the significance of the offence to the community and affected individuals, and options for the offender’s ­rehabilitation and reintegration into the Aboriginal community, including participation in ceremony or other cultural activities.

Law and Justice Groups and Plans Of all the hybrid initiatives, Law and Justice Groups in the Northern Territory represent the closet manifestation of “critical intercultural struggle” (Walsh 2010, 21) and  critical negotiation with mainstream, Eurocentric justice. They go the furthest, as Sepahvand (2012, 898) describes, in relation to decolonisation and hybridity, in inverting “structures of domination” and substituting traditions of laws of the coloniser with the colonised. Law and Justice Groups are part of a “two-way law” (or “two laws system”) movement since the 1970s in the Northern Territory, which began in the relatively new “transition from an autonomous world” for Aboriginal people to a colonising world (Austin-Broos 1996, 3) where Aboriginal were forced to “engage in the practices of European orders that can come to dominate their lives”. Two-way law comingles Aboriginal and non-Aboriginal Laws in justice mechanisms to maximise the self-determination of both systems (Tonkinson 1978; Bern 1979; Reconciliation Australia 2013). Austin-Broos (1996, 6)

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wrote that “two-laws talk” echoes and reconstrues different white and blackfella ontologies, marking a passage between these two. In the 1970s, two-way law was regarded as an inevitable, and unfortunate, occurrence that forced Aboriginal people to participate in white fella laws (1996, 3; Maddock 1977, 27). Since the 1970s, and especially from the 1990s, two-way law has become an aspiration for Aboriginal people in the Northern Territory, in terms of seeking to continue to practise their laws against the dominant “one law” white system (Anthony 2015). They are a reaction to the increasing intrusion and incursion of colonial law on their Aboriginal communities and laws. The two-way movement particularly took off among Yolŋu and Warlpiri societies in the Top End and Central Australia. In relation to the Top End, Galarrwuy Yunupingu (1998) states that two laws—Yolŋu and Balanda (“white”)— is all about “the struggle we have had for Yolŋu law to be recognised” in relation to their governance, law and land tenure systems. The formation of Law and Justice Groups in the 1990s was a vehicle for Aboriginal communities to respond to their specific, place-based circumstances; including in Warlpiri (central Australian), Yolŋu (East Arnhem), Tiwi (Bathurst and Melville Islands) and Larrakia (Darwin and surrounds) societies. The Law and Justice Groups have established plans in their individual communities as well as provided a broad program that calls on heads of government and departments to demonstrate respect and recognition for their laws in the policies and practices of their agencies. In 1997, for example, the former (Warlpiri) Lajamanu Community Government Council and the Lajamanu Tribal Council wrote to the Chief Minister of the Northern Territory, the Minister for Police and the Minister for Aboriginal Development to establish a forum to bring their “two laws” together in a practical and meaningful way. Law and Justice Groups do not simply give Aboriginal people a stake in the justice process of the settler state (although this is one of their functions); they also give Aboriginal people the space to strengthen and affirm Aboriginal law-making structures in the community free from settler colonial law enforcement. For instance, they advocate for the right to engage in ceremony or Aboriginal Law processes without being surveilled or administered by the settler colonial police or courts (see Anthony and Chapman 2008; Loy 2010). They provide a space for interaction between

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Aboriginal and non-Aboriginal Laws and Law makers (Blagg 2008, 140) and advocate and plan for recognition of the local Aboriginal Laws by governments, police and other agencies who are perceived as interfering in their otherwise peaceful and lawful communities. In this way, Law and Justice Groups are an offshoot of the two-way law movement—a hybrid mechanism that attempts cooperation, negotiation and resistance, rather than an Aboriginal Law structure or grouping. They nonetheless demonstrate the strength of Aboriginal laws, cultures and communities in the face of violent dispossession and epistemic violence. Returning to the Lajamanu Law and Justice Committee, which was the forerunner group in the Northern Territory, it was established in 1998 with substantial resources devoted by the community. The Committee drew up a plan in which it would operate as an interface between the community and the myriad of government agencies involved in the provision of Law and Justice services. This plan was signed by the Territory and Commonwealth Governments and community organisations in 1999. The Warlpiri Law and Justice Committees—known as the Kurdiji (also spelt “Kurduju” and meaning “shield” and “protection of the community”)—operate in four Central Australian communities: Ali Curung, Lajamanu, Yuendumu and Willowra. These committees came together in 2001 to form an umbrella Kurdiji Committee. They have a broad ambit that includes the engagement and participation of Elders in the courts, promoting community safety, and fostering Warlpiri Law and authority structures. However, a number of developments threatened the existence of Law and Justice Groups. These included the Northern Territory Intervention, the intensification of the government’s law and order agenda, and the end of  the Aboriginal Law and Justice Strategy in 2005 (which set down a government commitment to fund Law and Justice Groups, as well as dispute resolution practices and Night Patrols, see Wild and Anderson 2007, 180–183). With the assistance of Aboriginal legal services and land councils, Law and Justice Groups were reconstituted around 2010. While the withdrawal of Government support was a major blow for Warlpiri people and their confidence in two-way law, they worked to revitalise their functions with the support of the North Australian Aboriginal Justice Agency and the Central Land Council. They continue to advocate for their laws

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and highlight the injury that settler colonial laws brought to their communities and children (see Loy 2010). There are currently four Law and Justicestyled Groups: Lajamanu’s Kurdiji Law and Justice Group (established by the Warlpiri community in 1998 and reconstituted in 2009); the Yuendumu Mediation and Justice Group (established by the Warlpiri community in 2006); Wurrumiyanga’s Ponki Mediators in the Tiwi Islands (established in 2009); and Maningrida’s Bunawarra Dispute Resolution Elders in the Top End (established by the predominantly Yolŋu community in 2012). These groups work to strengthen the status of their law systems and shape settler justice practices for their benefit. In Lajamanu, Kurdiji continues as a group of senior men and women who foster respect for Warlpiri Law and non-Warlpiri Law and Justice within the community (see Lajamanu Law and Justice Group 2014, 6). Kurdiji has its own Law and Justice Plan with government and police. They are responsible for the Aboriginal Night Patrol and community safety. Following its establishment, community safety has been enhanced because Aboriginal people feel accountable to Kurdiji (see Anthony and Crawford 2014). One aspect of the Law and Justice Groups’ functions in Lajamanu, Wurrumiyanga and Maningrida is to work with the North Australian Aboriginal Justice Agency to prepare reports, letters of support and references for Aboriginal people appearing before sentencing courts. They outline the group’s knowledge of the offender’s character, relationships and background (including their behaviour in the community), views about the offending, and ideas for the offender’s sentence. In the past, Law and Justice Groups have been involved in  local Community Courts, through its Elders convening a court of summary jurisdiction during a sentencing matter and voicing their opinion, in their language and to the offender, on what the offender needs to do to get on the right path (Bradley 2005, 1). At present, the Northern Territory Government has issued a draft of its inaugural Aboriginal Justice Agreement in consultation with Aboriginal communities and government agencies. It is a response, at least in part, to high and rising Aboriginal incarceration rates, abusive practices against Aboriginal children in youth detention, and a breakdown of trust by Aboriginal communities towards the Northern Territory Government, but also the culmination of Aboriginal resistance to the  settler colonial legal hegemony. The purposes of the

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Aboriginal Justice Agreement are: to engage and support Aboriginal leadership; reduce reoffending and imprisonment rates of Aboriginal people; and improve justice responses and services to Aboriginal people (Northern Territory Government 2019). The agreement seeks to promote a form of hybrid justice that represents a shared understanding among governments, agencies and Aboriginal communities and organisations. One proposed aspect of the formative Aboriginal Justice Agreement is support for Law and Justice Groups across the Northern Territory.

 egemony: The State’s Responses to Hybrid H Sentencing Structures and the Ongoing Need for Indigenous Resurgence Hybrid sentencing initiatives marked an important inroad into accommodating Indigenous worldviews and perspectives in sentencing and challenging the state-centric sentencing process. However, they have also been regarded as a token concession provided by the settler colonial system to Indigenous communities, while retaining the coloniser’s criminal sentencing infrastructure and its carceral effects. Merlan (1998, 180–181) asserted that “intercultural” mechanisms are invariably “unequal” in settler colonial society, where “white” society continues to dominate. The vulnerability of Indigenous sentencing interventions is blatantly apparent when the state has abolished them, such as in the Northern Territory, or ceased their operations for a period, such as in Queensland and Western Australia, or where judicial officers have refused to allow them to convene. Galarrwuy Yunupingu (1998) has observed: “although Yolŋu Law has stability, stays the same, the Balanda law changes all the time and can wipe away our rights with the stroke of a pen”. These renewed acts of dispossession and disempowerment are the marker of a state seeking to reinstate “one-way law”. The renewed imposition one white law is exhibited in the 2007 Federal prohibition on Indigenous cultural and customary law considerations in sentencing and bail decisions, which Spiers Williams (2013, 8) describes as sanctioning “intolerance to Aboriginal

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customary law and cultural practice” and undermining the “the ethos of pluralism” in the Northern Territory. It is also apparent in the de-funding of Law and Justice Groups and the decisions in 2011–2012 by Northern Territory Chief Magistrate Hillary Hannam (2013, 6) to nullify Northern Territory Aboriginal Community Courts in the adult jurisdiction and the Northern Territory government to discontinue them in the youth jurisdiction. This revoked key fora in which Indigenous people could contribute to the sentencing process and improve outcomes for their adults and children. The one-law practice and ideology also manifests in the regulation of Aboriginal Night Patrols by Northern Territory and Federal governments, as discussed in the following chapter. It is also in the every-day conduct of police that has produced frustration and grief for local Aboriginal people in the Northern Territory, as it demonstrates a continued failure to recognise Law and Justice Plans and, accordingly, respect local Aboriginal laws. For instance, in 2008, a female police officer violated an agreement by entering an Aboriginal men’s ceremony. The Lajamanu community affected by this breach of Warlpiri Law were further aggrieved when prosecutions were not pursued against the officer, despite the officer’s breach of the Sacred Sites Act (NT) (Anthony and Chapman 2008). Furthermore, Jampijinpa from Lajamanu articulated his frustration with the current failure of “white” law to accommodate Warlpiri Law, especially in relation to the practice of Warlpiri punishment (Yawaru manu): Warlpiri system is very strong, and Warlpiri system is really important to us. We’ve got to teach our children. But how can we teach our children when we start off with one thing, allowed, on one hand, to be free to teach our children while we are tied up with the other hand. The government won’t let us do those things any more now, which is really bad for our people. Then I think when we start breaking their law, they also break our law too! But we get punished by their law, they don’t get punished by our law. So what is the difference here? They walk away free! (quoted in Loy 2010)

While judicial recognition of Indigenous circumstances, Indigenous sentencing courts and Indigenous (Gladue) Reports are expressions of

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Indigenous and non-Indigenous hybridity in the criminal justice system, they operate in the coloniser’s criminal jurisdiction, which has limited legitimacy for Indigenous peoples. The judicial (and political) unwillingness to countenance a pluralist criminal jurisdiction (see Walker v New South Wales (1994) 182 CLR 45) highlights the precarious nature of Indigenous inclusion in sentencing processes and its dependence on the colonial legal domain. Nonetheless, Indigenous resistance and resurgence has assured that hybrid mechanisms have not simply withered away. Indigenous people continue to provide a voice in sentencing and pre-­ ­ sentence processes across Australia, New Zealand and Canada; enliven Law and Justice planning in Northern Territory communities; and contribute to Aboriginal Justice Agreement making in the Northern Territory, the Australian Capital Territory and Victoria, which demonstrates the resilience of Indigenous Laws and communities. While hybrid justice mechanisms can shift the colonial discourse and practice, as discussed in this chapter, they are not a substitute for the resurgence of Indigenous jurisdictions. They need to exist alongside ongoing pressure to shift the terms of inter-cultural exchange closer to Indigenous Law and governance, rather than remaining subordinate to the coloniser’s legal domain (see Anthony 2017; Alfred 2005). As stated in Indigenous People Crime and Punishment (Anthony 2013), which identified sentencing courts’ degradation of Indigenous people and their communities in the recent neo-colonial phase, Indigenous recognition is “a pliable concept that is just as likely to remove concessions as it is to grant them” and to paternalise as much as demonise. The focus should, instead, be on a two-way recognition process that affords Indigenous people greater control in dispute resolution and healing. This needs to be part of a challenge to the “colonial will to control” (Jackson 1995, 34), including the judicial will to subsume Indigenous peoples and laws into the courts’ “normative order” (Anthony 2013, 208). Only then can we create a transformative and decolonised justice paradigm that transcends judicial attempts to recognise Indigenous Laws in the coloniser’s gaze, and instead strengthens Indigenous authority structures, laws and societies on their own terms.

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Northern Territory Government (2019) “Northern Territory Aboriginal Justice Agreement (Draft Agreement—for consultation)”. https://justice.nt.gov.au/ attorney-general-and-justice/northern-territory-aboriginal-justice-agreement Pawu-Kurlpurlurnu W J, Holmes M and Box L. 2008. Ngurra-kurlu: A Way of Working with Warlpiri People, DKCRC Report 41. Desert Knowledge CRC, Alice Springs. Reconciliation Australia (2013) “Two Way Governance”. 31 May. http://www. reconciliation.org.au/governance/toolkit/2-2-two-way-governance Roach K (2009) “One Step Forward, Two Steps Back: Gladue in the Courts of Appeal”. Criminal Law Quarterly 54: 470–505. Royal Commission into Aboriginal Deaths in Custody (1991) National Report. Canberra: Australian Government Publishing Service. Said E (1978) Orientalism. New York: Pantheon. ——— (1993) Culture and Imperialism. London: Vintage. Sepahvand H (2012) “Hybridity as Instrument of Decolonization in Herman Melville‘s Moby Dick”. Theory and Practice in Language Studies 2(5): 895–901. Shepherd S M and Anthony T (2018) “Popping the Cultural Bubble of Violence Risk Assessment Tools”. Journal of Forensic Psychiatry and Psychology 29(2): 211–220. Shohat E (1992) “Social Text”. Third World and Postcolonial Issues 31/32: 99–113. Spiers Williams M (2013) “Why are There No Adult Community Courts Operating in the Northern Territory of Australia?” Indigenous Law Bulletin 8(4): 7–11. Sutherland J (2002) “Colonialism, Crime, and Dispute Resolution: A Critical Analysis of Canada’s Aboriginal Justice Strategy”. Online article. Mediate. com. http://www.mediate.com/articles/sutherlandJ.cfm. Tauri J (1998) “Family Group Conferencing: A Case Study of the Indigenisation of New Zealand’s Justice System”. Current Issues in Criminal Justice 10(2): 168–182. ——— (2016) “The State, the Academy and Indigenous Justice: A Counter-­ Colonial Critique”. PhD Thesis, University of Wollongong. Tonkinson R (1978) “Aboriginal Community Autonomy: Myth and Reality”. In M Howard (ed) “Whitefella Business”: Aborigines in Australian Politics. Philadelphia: Institute for the Study of Human Issues, 93–103. Victoria State Government and Aboriginal Justice Caucus (2019) “The Aboriginal Justice Agreement Phase 4”. Victorian Aboriginal Justice Agreement. https://www.aboriginaljustice.vic.gov.au/the-agreement/the-aboriginaljustice-agreement-phase-4

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Walsh C (2010) “Development as Buen Vivir: Institutional Arrangements and (De)Colonial Entanglements”. Development 53(1): 15–21. Whonnock K (2008) “Aboriginal Courts in Canada”. http://scowarchive.libraries.coop/library/documents/Aboriginal_Courts_Fact_Sheet.pdf. Wild R and Anderson P (2007) Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’: Final Report of the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse. Darwin: Northern Territory Government. Yaxley L (2006) “High Court Rejects Appeal Based on Customary Law”. PM Program, ABC Radio, 19 May. http://www.abc.net.au/pm/content/2006/ s1643178.htm Yunupingu G (1998) Third Vincent Lingiari Memorial Lecture, 20 August, Darwin.

Legal Materials Aboriginal Areas Protection Authority v S & R Building and Construction Pty Ltd [2011] NTSC 3. Amagula v White [1998] NTSC 61. Bugmy v The Queen (2013) 249 CLR 571. Goldsmith v R (1995) 65 SASR 373. Jabaltjari v Hammersley (1977) 15 ALR 94. Jadurin v R (1982) 7 Crim R 182. Juli v R (1990) 50 A Crim R 31. Mika v The Queen [2013] NZCA 648. Munungurr v The Queen (1994) 4 NTLR 63. Neal v The Queen (1982) 149 CLR 305. Northern Territory National Emergency Response Act 2007 (Cth). Queen v Bara [2006] NTCCA 17 at 11. R v Bulmer ((1986) 25 A Crim R 155). R v Ceissman (2001) 119 A Crim R 53. R v Davey (1980) 2 A Crim R 254. R v Fernando (1992) 76 A Crim R 58. R v Friday (1984) 14 A Crim R 471. R v Fuller-Cust (2002) 6 VR 496. R v Gladue [1999] 1 SCR 688.

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R v Huata & Huata (Unreported CD, Auckland District Court, CRI-2003-­ 041-­5606, 30 September 2005). R v Ipeelee [2012] 1 SCR 433. R v Mamarika (1982) 5 A Crim R 354. R v Minor (1992) 105 FLR 180. R v Miyatatawuy (1996) 87 A Crim R 574. R v Morgan (2003) 57 NSWLR 533. R v Moses ([1992] 71 CCC (d) 347. R v Mustey [2001] VSC 68. R v Nathan (1989) 4 CRNZ 369. R v Poulson (2001) 122 A Crim R 388. R v Shannon (1991) 56 A Crim R 56. R v Wunungmurra [2009] NTSC 24. R v Yakayaka and Djambuy (2012, Unreported, Supreme Court of Northern Territory, Riley CJ, 17 December). R v Yougie (1987) 33 A Crim R 301. Rogers & Murray v R (1989) 44 A Crim R 301. The Queen v Rawiri and Others (2009, High Court of New Zealand CRI2007-­032-5294, Simon France J, 14 August). Walden v Hensler (1987) 163 CLR 561. Walker v New South Wales (1994) 182 CLR 45. Wurramara (1999) 105 A Crim R 512.

11 Hybrid Justice (ii): Night Patrols and Place-Based Sovereignty

It is difficult to overstate the pivotal role played by policing in the dispossessions of Indigenous people in Australia (Cunneen 2001, Finnane 1994, Finnane and McGuire 2001, Royal Commission into Aboriginal Deaths in Custody 1991). The police are often referred to as the “gatekeepers” of the criminal justice system in the mainstream criminological literature because of the way they act to filter perceived cases of law-­ breaking in or out of the justice system. Police “discretion” is one of the most researched aspects of policing (Newburn 2008). In Australia, and other settler colonies, the police have also been, in Agamben’s (1998) terms, “sovereign”, in the sense of occupying the “threshold” where violence becomes law and law becomes violence. Their “discretion” covered entry into various zones of exception and indistinction created to warehouse, exploit and assimilate Indigenous peoples, such as feeding stations, reserves, missions, the pearling industries, cattle stations, residential schools, orphanages, segregation islands and other camps of “bare life”. The legacy of this role continues to structure relationships between coloniser and colonised. The police rarely offer anything more than a form of “bare life” policing for Indigenous people: meaning a form of policing sufficient to draw Indigenous people into the web of white law © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_11

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without granting them the benefits of its protections. Indigenous life has tenuous claims to assistance (or existence) under “bare life” policing and Indigenous people readily become homo sacer in police confinement. Policing traditionally functioned to maintain the divide between black and white, and defend white sensibilities against the unsettling proximity of the Other; whose mere presence can induce revulsion and fear. In his study of the psychological dimensions of apartheid, Derek Hook (2011, 83) reports on how white settlers “experience a set of anxious, affective, bodily reactions” to the proximity of the racialised Other. “Such affective responses”, he suggests, “remain conditioned by a symbolic horizon…a (pre-reflexive) backdrop of historical values, meanings, roles and similar symbolic designations” (Hook 2011, 83). Aboriginal people have had to create their own forms of what Porter (2016) calls “counter-policing” to compensate for this systemic contempt for Aboriginal life. Aboriginal community patrols (commonly referred to as “Night Patrols” or simply “Patrols”) represent a uniquely Indigenous Australian form of grass roots, community service, which has only small-­ scale resonances in other settler colonies. They remain the longest running form of Indigenous, community owned and designed harm prevention initiative in Australia. They were established in an ad hoc fashion in the Northern Territory sometime in the 1980s, to combat alcohol related violence on remote communities in the face of government and police indifference. “Bare life” policing can offer little of value to Indigenous people as it is overwhelmingly concerned with protecting white property, order and sensibilities, not providing a “service”. Patrols have filled the security and welfare deficit. Patrols operate without formal policing powers and do not fit neatly into established paradigms of policing arising in the Global North, as they are neither state police nor offer a private security service (Blagg 2016). Unlike mainstream police, Night Patrols cannot legitimately employ coercive powers to ensure compliance—nor would most want to. They safeguard neither settler law nor its states of exception and indistinction. Cunneen and Porter (2017) dryly observe that “the contribution of Indigenous patrols (and other Indigenous community justice mechanisms) has largely escaped the attention of criminologists” (677). This is not surprising given that the criminological gaze is fixated on

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watching the police patrol the city; they are, literally, unable to see patrols at work, even when standing next to them. A notable feature of the Western gaze is its capacity not to see. However, a decolonising/postcolonial imperative requires that we step outside this paradigm and imagine alternative forms of community engagement that do not create “bare life” either within the Indigenous community or in the repressive institutions of the state. Patrols need to be part of this imaginary. Before looking at this issue it is worth briefly recapping on the role of Night Patrols.

What Are They and How Do They Work? Patrols provide assistance for Indigenous people in need or presenting safety concerns, and operate both mobile and foot patrols, for adults and/ or youth, during the night and sometimes day, depending on context. Although their functions vary, they converge on safe transportation, dispute resolution, prevention of family violence, homelessness and substance misuse (including petrol sniffing), and diversion from contact with the criminal justice system (Blagg 2016). They transport people to community and government facilities, where available, such as sobering­up shelters, safe houses, women’s refuges, men’s places, clinics, hostels, “family healing” and justice groups, and they liaise with case workers and the police (Memmott and Fantin 2001; Ryan 2001; Charles Darwin University “CDU” 2009; Turner-Walker 2010; Pilkington 2009). In some states (e.g. Western Australia) they are involved in truancy patrols and, in partnership with breakfast programs, ensure children are on time for school. Their transportation role is embedded in a support ethic and service (Sims et al. 2019, 674). Through these various functions, patrols minimise harm and divert people from the criminal justice system (Australian National Audit Office “ANAO” 2011, 83, 93–98; Beacroft et al. 2011, 3–4; Blagg and Valuri 2003, 59; Cunneen 2001, 41). An early review of patrols (Blagg and Valuri 2001) found around 135 schemes Australia wide and they functioned in urban as well as rural and remote settings. They varied in size, with some urban patrols being able to mount wide-ranging services in partnership with government and non-government agencies, while others may involve a few community

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members checking on drinkers or children to ensure they are safe. In the absence of consistent government investment, community Aboriginal people have relied heavily on local cultural knowledge and localised resources. Patrols have played an important role in enabling Indigenous communities to restrict the flow of alcohol and take the heat out of potentially combustible situations.

What Makes for a Good Service? Sources suggest that Patrols are most effective when under local control (Barcham 2010, 53; Blagg and Valuri 2003, 81; Commonwealth of Australia 2009, 4), responsive to community needs and flexible in their service delivery. They should enjoy strong cultural legitimacy (CDU 2009, Curtis 1993; Higgins and Associates 1997; Memmott and Fantin 2001) and be staffed by cultural insiders who, because of their standing, and knowledge of Indigenous protocols, can mediate disputes (Turner-­ Walker 2010, 7–8). There is also an important role for sympathetic outsiders, who can negotiate non-Indigenous structures and processes (Blagg 2016, 96–97). Patrols should be integrated into a diversity of local Indigenous and non-Indigenous mechanisms rather than just embody “stand-alone” initiatives (Blagg 2006; Cunneen 2001) and, crucially, they must be respectful of gender, language and clan affiliation in their working practices (CDU 2009; Ryan 2001). One frequently neglected feature of patrols, and other community justice mechanisms, is the prominent role of Indigenous women in creating, nurturing and sustaining Night Patrol work within an Indigenous ethics of care. It is well documented that community safety depends on Night Patrols working within a strong community governance framework and ensuring that patrols are part of a holistic approach (Beacroft et al. 2011, 4; Blagg and Valuri 2003, 80). There is firm evidence that they are generally embraced by the community, collaborate well with other community services and have positive outcomes from their encounters (Beacroft et al. 2011, 4; Blagg 2006, 3–4, 46). Observations of two remote communities in Western Australia suggest that patrols substantially reduced the number of admissions to police lock-ups (Blagg 2006, 24; Blagg and Valuri

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2003, 20–21). There is also evidence of reduced youth crime rates, alcohol-­related crime and protective custody rates (Cunneen 2001, 9, 41–42). The Tangentyere Council Patrollers (2007, 3) in central Australia found that of the 9396 encounters, 8.7% involved violence and the majority of these were diffused without police involvement. In two-thirds of all encounters, the Aboriginal community member was transported home or to a safe place. Research asserts the importance of strengthening Indigenous culture and reintegrating offenders through community-based programs (Gaykamangu 2012; Loy 2010; Wild and Anderson 2007, 175–192). Indigenous communities regard formal justice processes as only one aspect of safety work, which equally relies on avenues such as Indigenous ceremony, Indigenous conflict resolution strategies involving Elders and family, and hybrid programs such as night patrols, community justice groups and safe houses (Pilkington 2009, 157–159; Memmott et  al. 2001; Blagg and Valuri 2004; Walker and Forrester 2002). In a 2011 survey of local Indigenous people in 16 Northern Territory communities, three-quarters reported that Night Patrols made a difference to community safety (Putt and FaHCSIA 2011). Another study on perceptions of service providers found that 48% believed that night patrols and community police were “the most important community safety initiatives” (Willis 2010, 38). Monitoring data of central Australian patrols found that they play an important role in strengthening Indigenous cultural authority (Turner-­ Walker 2010). Equally, there is a perception in communities that patrols enhance cultural understanding between the Indigenous and non-­ Indigenous domains. Relationships between patrols and agencies such as the police are generally cordial, however patrols often feel that information sharing is a one-way street and protocols established for “working together” are vague and ambiguous (Allen Consulting Group 2010, 71). There is a view among Indigenous community members, for example, that “while the night patrol support the work of the police, the police often do not reciprocate” and there is a lack of understanding between community groups and government agencies (Pilkington 2009, 112). Despite government attempts to focus the work of patrols on state priorities such as crime control, anti-social behaviour and social

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r­ egulation, patrols inevitably cut across the silos created by white governance structures. They blur cherished boundaries between welfare on the one hand (often viewed as a feminine domain) and social regulation on the other (a traditionally masculine domain). The success of patrols, from an Indigenous perspective, lies precisely in the fact that they transgress such divisions and are able to create a mix of “place-based” approaches to local problems that work from within an Indigenous worldview. They also demonstrate that Indigenous communities can do better than simply replicate those forms of policing and governance bestowed by colonial power. We contend that patrols propagate forms of “place-based Indigenous sovereignty” (Blagg and Anthony 2014, 104).

Warlpiri Women Patrols contribute to actively reproducing the Aboriginal domain as a living and dynamic social and spiritual entity. Patrols in central Australia do not simply operate within limits set down by Aboriginal law, they actively exercise and reproduce the law when they patrol communities. Respected Law Women operate community patrols and leverage off their seniority in Warlpiri Law. They are  responsible for important Warlpiri  ceremonies, songs, dances, places and stories within the Jakurpa (usually translated as “dreamings” by non-Indigenous people). On Yuendumu in the Northern Territory we met women patrollers painting outside the Warlukurlangu arts centre, or participating in the Yuendumu Mediation and Justice Committee which attempts to bring Indigenous notions of dispute resolution into the Magistrate’s Court. These senior women help to knit together the community through the practice of what Warlpiri people call Ngurra-Kurlu, which translates as a form of mutual care that engenders respect for the basis of Warlpiri life: land, law, ceremony, language and skin relationships (Pawu-Kurlpurlurnu et al. 2008, 1–4). For Aboriginal women, “patrolling” is a continuation of traditional roles associated with maintaining community cohesion and expressing solidarity with kin. Yuendumu has both men’s and women’s patrols. The latter, under the founding, indomitable leadership of Peggy Nampijimpa Brown, is the longest running women’s night patrol in Australia. The women patrollers

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recognised that no agency was effectively dealing with the issue of petrol sniffing among young people on the community, which was having a devastating impact. The Mt Theo Youth Diversionary Program, established by Traditional Owners Peggy Nampijimpa Brown, Barney Japangardi Brown and Johnny Japangardi Miller (with the support of another Aboriginal organisation the Central Australian Youth Link-Up Service (CAYLUS) run by Tangentyere Council in Alice Springs) to stop petrol sniffing, is acknowledged to be a gold standard program (Stojanovski 2010). Mt Theo has eradicated petrol sniffing on Warlpiri land, and has developed a sophisticated, holistic program involving education, employment and cultural engagement to offer meaningful and safe programs for youths on communities in Central Australia: an approach endorsed by government announcements post-NT Intervention (see FaHCSIA 2009). The men and women’s patrols complemented other community owned initiatives, such as a Men’s Shelter and the Women’s Refuge. The women’s patrol on Yuendumu is respected, even by unruly young people, because the women are senior Elders on the community. They are the aunties and mothers of the young people they patrol and, on occasion chastise, or “growl” them. As the coordinator of the patrol told the Australian Broadcasting Corporation news: [E]verybody knows they’re there so if you’re going to go and smash cars up, you just never know when Night Patrol’s going to come around the corner and you know that if those old women catch you, you’re going to cop it. (Lee 2008)

The women’s patrol has, according to some commentators, not always received the respect it deserves from the mainstream community. For example, Lloyd and Rogers (1993) critique an article on the Yuendumu women in the Weekend Australian (7/8 March 1992) that refers to these respected, senior law women as the “Granny Vice Squad”. They remark: The night patrols have been instrumental in reducing the level of assaults in the town camps and, at Yuendumu, there has been a noticeable drop in a range of assaults and offences. The Yuendumu women’s night patrol has received some media coverage which has described the women as the ‘Granny Vice Patrol’ thus belittling their authority and law, which is the

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basis of their success in maintaining law and order at Yuendumu…This is another example of the way in which Aboriginal women are excluded from any pronouncements of law and culture. (Lloyd and Rogers 1993, 162)

Aboriginal women’s patrols de-couple the idea of “patrolling” from its accustomed place in the colonial imaginary, where it is linked with “showing the flag”, robustly reacting to incidents, and performing surveillance for the state (Cunneen 2001). Instead, narratives around Aboriginal patrolling nurture stories of community strength and cohesion, preventing rather than reacting, and making mainstream policing visible and transparent and accountable to the community (patrols often “keep their eyes on the police”). Policing is a quintessentially male pastime (Reiner 2000), celebrating “hedonism and action” (Holdaway 1983: 100) over community building and crime prevention, which are frequently demeaned as “care bear” policing in cop culture: a form of “social work” not policing (Sampson et al. 1988). Patrols offer an alternative approach to community safety, less reliant on tropes of coercion and force. The work of patrols cuts across the divisions created by white governance structures when it regulates community: traversing boundaries of community policing, brief intervention, peacemaking, youth outreach, drug and alcohol intervention, and family violence prevention. Within the Indigenous domain, women’s patrols are particularly skilled at maintaining consensus and inclusion. Successful patrolling involves employing local knowledge to prevent incidents from occurring. Given that women are highly represented as workers (and, indeed, clients) they provide lessons regarding the role of gender in shaping nonadversarial paradigms of community level intervention and policing that take us beyond heavily masculinised crime control ideologies and cultures. Blagg and Valuri (2001) found that around 50% of patrollers in Australia are women and that women represent roughly half of the clients, and often have very specific views about the nature of the work, tending to have a stronger “ethic of care”, be less authoritarian and more welfare orientated than male patrollers (Blagg and Valuri 2001; Turner-Walker 2010). Turner-Walker (2010) observed that men’s patrols

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have a tendency to copy the masculine performativity of state police in the way they approach patrol work, focusing on authority and compliance (even where this cannot be backed up with force), whereas women’s patrols do not need to project an authoritarian persona. For men, and many Indigenous men included, performances of masculine authority are the default form of “doing policing”.

Investment in Night Patrols at a Cost In the Northern Territory the policing of Indigenous space and place became a key priority for Australia’s Commonwealth government after a major focus on issues of child abuse and family violence a decade ago (discussed in detail in Chap. 9). As part of the Commonwealth’s Northern Territory Intervention, Night Patrols have come in from the policy margins to occupy a pivotal position within government funded and initiated remote community safety partnerships in the Northern Territory. While the increased resources for patrols have been generally welcomed, it has come with costs attached for Aboriginal communities who are being forced to surrender local autonomy. For patrols, therefore, this new found favour, after years of being largely ignored by white government, is a double-edged sword (see Anthony and Blagg 2013; Sims et al. 2019). The growth in investment in Northern Territory patrols supplemented a massive increase in traditional state policing and in the role of government more broadly, not an alternative to it. Experience suggests that extending the disciplinary and criminalisation powers of the settler state deeper into the Indigenous domain does not reduce social problems in these communities or ensures the maintenance of social order; instead, as Cunneen (2011) argues, it intensifies levels of disadvantage and undermines social order. This was certainly the case in the Northern Territory in 2006/2007, when there was a “surge” in police numbers on remote Indigenous communities. Equally, extending the state’s control over the Indigenous “third space” (Bhabha 1994, 38) of the Night Patrol threatens rather than secures the role of patrols in the Indigenous social order.

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New Night Patrols: Contested Definitions The significant increase in police resources in the Northern Territory (NT) from 2007 was complemented by the creation of 50 “new” Night Patrols—bringing the full complement to over 80 with over 350 paid positions. Given the high attrition rate for patrols in the NT, and a tendency for patrolling to be a cyclical phenomenon—its rhythms influenced by a mix of financial, cultural and social factors (Higgins and Associates 1997; Ryan 2001)—it is difficult to assert with confidence how many of the “new” schemes were in fact new. A number of them were clearly built upon the foundations of earlier schemes. The patrols, with a few exceptions, were to be administered by NT “Shire” councils, according to Federal operational guidelines (ANAO 2011, 89). This immediately disempowered local communities who had tended to administer them through their own Aboriginal  local councils  (which were congruently abolished under the NT Intervention). There were a number of competing definitions in play regarding the role of the patrols as part of the NT Intervention. The NT police have tended to see patrols as the “eyes and ears” of the police on remote communities, playing an essentially subaltern role in  local policing strategies—a categorisation rejected by patrols themselves who see their work as radically different from mainstream policing and who, as we mentioned earlier, keep their eyes on the police. Indeed, many believed that their core task was to act as a buffer between the community and the police (Blagg 2003, 17; Blagg 2016, 94–95). They, therefore, stand at the threshold to the “camp”—preventing Indigenous lives becoming “bare life” and homo sacer, to use Agamben’s (1998) frame. The role of patrols in preventing deaths in custody by reducing contact with lock-ups and other “bare life” institutions has not been measured empirically. The qualitative interviews we have conducted as part of our ongoing Australian Research Council project strongly suggest that they have had this effect. Patrollers, police and a diversity of government and community owned agencies interviewed by Harry Blagg in rural and remote Western Australia, are convinced that their interventions have prevented deaths in custody and other settings.

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Ties That Bind: Aboriginal Law Initiatives generated by NT Aboriginal communities are anchored in Aboriginal law, meaning that their authority to intervene in local issues is derived from cultural authority (Blagg 2006, 3–4; NT Law Reform Committee 2003). Notwithstanding the increased presence of government agencies and police in NT communities since 2006, Aboriginal cultural obligations continue to have significant influence on Indigenous life in remote areas. Aboriginal people pursue justice through many different community avenues and not only through the police (Pilkington 2009, 7). Aboriginal law binds people together and creates an intricate tapestry of relationships, obligations and ties. Patrols work according to the precepts of Aboriginal law, respecting “avoidance” practices and the distinct rules governing relationships between different moiety (or “skin”) groupings, including in the face of increasing government regulations, although with increasing difficulty (as outlined below). Indeed, as we have suggested, patrols do not simply operate within limits set down by Aboriginal law, they actively exercise and reproduce lawful power when they patrol communities. Respect for gender difference is reflected in the distinct men and women’s patrols in the NT. Men and women have their own forms of law “business”, “dreamings” and ceremonial spaces. This is exhibited in the ways men and women’s patrols divide their work on communities, to avoid prohibited forms of contact, and particular prohibited places.

Government Interest in Patrols The Australian Commonwealth Government’s commitment to Night Patrols was reflected in a pledge to maintain funding for them as part of its Stronger Futures strategy (Australian Government 2014). For the first time nearly every remote community and town in the NT has an Aboriginal Night Patrol. However, greater security of Commonwealth Government funding has come at a price: an increasingly more restrictive regulatory environment that, whilst seeking to protect the safety of patrollers and

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ensure some degree of consistency in role and remuneration, has reduced local control and responsiveness. They have been increasingly co-opted as junior partners into new security assemblages in NT towns and remote communities. Governments have not appreciated the sui generis nature of patrols and their degree of difference from mainstream policing modalities Government agencies involved in funding and administering patrols, such as the Federal Attorney General’s Department, who, thanks to the Intervention, had become key players in community justice and safety strategies in the NT, tended to view Night Patrols through a crime prevention lens. They acknowledged that local community justice mechanisms have been successful in responding to Indigenous needs and improving safety, and saw them as a vehicle for helping community members “who may be at risk of either causing harm or becoming a victim of harm” (ANAO 2011, 27). Accordingly, funding for night patrols has been geared towards relocating at-risk people to safe places and services, and supporting police work (Attorney-General’s Department 2013). The Commonwealth Government’s Stronger Futures strategy in the NT places importance on patrols within a “community safety” paradigm: Community night patrols are a key element of the Community Safety and Justice measure, which supports continued improvements in community safety for remote Aboriginal communities in the Northern Territory. This measure also includes policing and supplementary legal assistance services. These initiatives are improving community safety for Aboriginal people living in remote areas, by enforcing alcohol restrictions, maintaining law and order, and working with local people to keep their communities safe. (Australian Government/Closing the Gap 2012, 2)

In mandating the roles of Night Patrols this way, the government has sharpened the focus of their work on crime and violence reduction, to the detriment of their other community functions that may not fall within the arena of crime prevention per se but which are, nonetheless, crucial for community wellbeing and thereby maintaining patrols’ legitimacy and credibility within Aboriginal communities. In contrast to the Stronger Futures statement above, Walker and Forrester (2002) describe patrols as creating a “nexus” that

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connects people with a whole range of services, such as clinics and hospitals and courts, as well as keeping the peace at a diversity of occasions, such as sporting events. This nexus has been damaged by top-down government regulation and management of patrols. Aboriginal-prescribed functions require patrols to travel off-­community and be on hand when local Aboriginal people became lost in the bush or break down on the highway. If not able to fulfil these social functions their legitimacy may be sacrificed in a way that undermines the patrols’ lawful authority to intervene, and compromises their capacity to deliver safety outcomes in the longer term. Government, rather than communities, increasingly establishes the rules by which patrols operate, and attempt to define “core business” in a way that restricts patrols to activities that can be measured in directly “crime prevention” terms. On one occasion on Yuendumu community we witnessed a situation where a young man was reported lost in the bush. The men’s night patrol was prevented from searching for him because it was “off community”—and government funding prevented patrols from travelling off community. The patrol leader, a local Elder in a kin relationship with the young man, lost the respect of the boy’s family and much of his authority (Blagg and Anthony 2014, 115). Aboriginal communities and government agencies may share common objectives (increased community safety, reduced incarceration) but may have radically different understandings of the processes necessary to achieve them. When developing initiatives, funding bodies and agencies tend to focus primarily on issues related to budgets, reporting and management, administration and so on, and give secondary importance to the need to ensue projects are culturally embedded (Ryan 2001), yet this may be critical in ensuring community acceptance of the patrol, ensuring it carries the endorsement of Elders, and working in ways that do not breach Aboriginal law. Has Commonwealth Government investment, then, come at the expense of local autonomy and community-ownership? Patrol training is now developed by “cultural outsiders” based on pre-existing modules from other government courses, rather than sensitive to the specialised roles and skills of patrollers. The training replaces the accredited courses developed by Indigenous organisations within communities (Turner-­Walker 2010, 56,

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138). New government guidelines preventing patrols crossing community borders has stopped them assisting those in drinking camps by returning them to safe places, such as a sobering-up shelter (Pilkington 2009, 161, 188). There is a conflict between patrollers’ characterisation of their duty as extending to those on outer community camps, and funding agencies’ characterisation as only assisting those in community. Operation and employment models also preclude patrols from travelling to events, such as sports weekends where disputes can arise, assisting with court appearances or looking for lost people and broken down vehicles (Turner-Walker 2010, 136–137). Hours of operation of patrols and the terms and conditions of patrol employment are now prescribed centrally removing patrollers’ ability to respond rapidly and strategically to community conditions (2010, 137). Taking the “crime prevention” focus to its logical conclusion raises the question: do patrols need to be community “owned” initiatives? Do they need to be “mandated” by Aboriginal law if their tasks are restricted to transporting inebriated people and acting as police scouts on communities? Turner-Walker (2010) suggests that the cultural and demographic basis of patrols is changing on some communities, as Elders drift away from involvement and non-Aboriginal people take up positions on patrols. In addition, the broader context in which night patrols operate has changed significantly due to the increased policing presence in many communities, and substantial expansion in social services (such as child protection, health and youth services). This represents a critical juncture in the history of Aboriginal patrolling and community justice mechanisms in the Northern Territory.

Patrol Resilience in Australia and Beyond However, patrols have been remarkably resilient, largely because they simply make sense from within an Indigenous worldview, and may outlast current attempts to colonise them and transform them into agents of colonial governance. The practice of Indigenous patrolling is a reality in other settler colonial societies. In Winnipeg, Canada, the Bear Clan Patrol (2018) operates under the philosophy “community people working with

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the community to provide personal security in the inner city in a nonthreatening, non-violent and supportive way”. The patrol is made up of First Nations men and women, and was founded because of the lack of official interest in missing and murdered First Nations women and problems associated with drugs, alcohol and violence on the streets. In Aotearoa/New Zealand, Mãori Wardens, a tradition going back to the 1860s, focus on similar issues of community safety, though are more formally constituted than in either Australia or Canada. We have noted the significant investment in patrolling by Aboriginal women in central Australia. The role of women in patrols is a feature of other settler colonial contexts. Mãori Wardens are 70% women (Te Puni Kōkiri 2017), and the Bear Clan Patrol (2018) has a strong women’s presence, having the support of First Nations women’s councils. Lajamanu and Yuendumu—large Warlpiri communities in remote central Australia1—continue to operate women’s patrols (Central Desert Regional Council n.d.). Such involvement demonstrates that Indigenous women, far from being the docile, passive victims of Indigenous male violence (an imaginary that flourished in the lead-up to the 2007 NT Intervention and legitimated the punitive turn) are actively engaged in running their communities and are holders of sovereign power. This does not negate the fact that Indigenous women are amongst the most traumatised section of settler colonial society. Rather it shifts the focus of attention away from solutions based solely on top down strategies, such as more arrests and incarceration of Indigenous men (which, ineluctably leads to more incarceration of Indigenous women) and points, instead, to building upon women’s capacities and developing partnerships—hybrid justice—with place-based Indigenous structures. Currently, it seems, prison is the only consistent “refuge” the white legal system can offer Indigenous women. Furthermore, women’s leadership in patrols have created a form of community policing based upon an ethics of care (as noted above), rather than of surveillance and punishment, and illustrate what can be achieved when a critical mass of women’s agency influences the direction of policing.  Indigenous people constitute approximately 90% of the population (approximately 1000 people) in Lajamanu and Yuendumu (ABS 2008a, b, c). 1

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Patrolling is an ambivalent practice for the settler state and a new site of contestation between settler power and Indigenous agency, reflected in attempts by settler power to harness patrols to meet its own law and order agenda while eliminating elements of patrol practice (such as off-­ community patrolling and a broader social care role) that do not conform to what governments perceive to be the core functions of patrolling, preventing crime on communities. Currently in the Northern Territory some Elders and women are drifting away from patrols and dis-endorsing them as community owned practice. This is a form of refusal to accept fresh incursions of colonial power set in train by the 2007 Intervention. However, patrols could rapidly reconstitute themselves given changed circumstances. As the Yuendumu women have demonstrated, all it takes is commitment and collective agency by people who are deeply embedded in place.

 oads to Freedom? Criminal Law R and Indigenous Mobilities Settler colonial power has consistently sought to control Indigenous mobility as a necessary prerequisite for dissolving Indigenous society (Blagg and Anthony 2019). The regulation of Night Patrols is simply one episode in a long history of the colonial governance of Indigenous mobility. The enforced mobility of dispossessed Indigenous peoples was a signal feature of colonial governance. Internal borders were constructed to prevent unwanted movement and restrict the colonised to designated zones. Unauthorised movement itself became a crime. In late modernity the capacity to be mobile is stratified: speed and slowness are reflections of social status and, as Ek (2006, 375) suggests, “mobility is always produced in tandem with the production of immobility”. Ek also suggests that Agamben’s work informs us how “the production of mobility and immobility overlaps with the production of naked life” (Ek 2006, 375). Naked, fragile, or “bare life” is created in the process of enforced mobility (the “Hightway of Tears” in British Columbia, Canada; the “trail of tears” in the USA, the trains to concentration camps  in the territories of Nazi Germany, the deportation trains in the USA (Blue 2019)), people become non-people in processes of passage.

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Through forms of carceral mobility, Indigenous peoples globally were forcibly evicted from their land to make way for white settlers and concentrated in prisons, lock-ups, missions, ration stations, reserves and other camps of “bare life”. Indigenous mobilities were heavily restricted in Australia by a constellation of laws and ordinances, draconian enough to have impressed the creators of South Africa’s system of pass laws, which were designed to restrict the movement of African people under the apartheid (Lake and Reynolds 2008). Policing and the criminal law still treat unrestrained and unregulated Indigenous mobility as representing a threat to white security and sovereign power. We draw on research conducted in central Australia (particularly on Warlpiri Country) Northern Territory (“NT”) between 2008 and 2012 that overlapped with the NT Intervention. This study focused on government  regulation of driving, vehicles, roads and drew heavily on Aboriginal experiences of driving and criminalisation (Anthony and Blagg 2012). The NT Intervention, purportedly concerned with family violence, actually had its greatest impact on Indigenous mobility. Above, we set out the role of Night Patrols in consolidating a form of place-based sovereignty. In the remainder of this chapter, we discuss another dimension of refusal: a refusal to be constrained by the imposed rules regulating white mobility and the creative accommodation of the automobile into Indigenous cultural knowledge, as popularised through the Yuendumu “Bush Mechanic”. Bush Mechanics challenge mainstream paradigms of mobility under neo-liberalism. The Intervention sharpened the colonial gaze, opening up new sites of governance and governmentality and the widened the net of white criminal law over Indigenous drivers in Central Australia. Our fieldwork found that the increasing criminalisation of Warlpiri people for traffic offences was a means to enforce obedience to the settler law and restricting mobility. Heightened enforcement of settler traffic laws went hand in hand with a broader attempt by the state to control Indigenous peoples’ lives and access to land. However, Warlpiri people’s capacity for obedience to traffic regulations is ­constrained by the lack of services for attaining the legal status of a driver (in relation to licensing and registration) alongside imperatives for Indigenous people to drive to access services and to transport family members to fulfil cultural obligations. The latter issue is a particular site of contestation where Indigenous

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and non-Indigenous imperatives regarding obedience to law come into direct conflict, frequently leading to enmeshment in the white legal system.

New Mobilities Paradigms The new “mobilities” paradigm sheds light on the pleasures and sociabilities of driving in late modernity, as well as the dangerous, unintended consequences. The sociological paradigms of new mobilities and automobilities confirm that systematic human movement, migration and the transcendence of boundaries are defining features of life in modernity (Cresswell 2006; Cresswell and Merriman 2011; Hannam et  al. 2006; Sheller and Urry 2006; Urry 2004). Mobility capabilities are not equal, but stratified in numerous ways, and this recognition has stimulated fresh academic research. However, less has been written about the mobilities issue within, rather than around, the boundaries of the settler postcolony, where new forms of state border-craft are, to some extent, being grafted onto a multiplicity of colonial era internal borders designed to control the inner, rather than outer frontiers (see Chap. 3). Contemporary settler colonial boundaries provide critical insights into the injustice of limitations imposed on mobility capacity where they restrict those with natal connections to the land.

The White Diaspora and Its Discontents The Australian white mainstream, like its counterparts in the northern hemisphere, frets excessively over borders, and has constructed a gulag of offshore detention centres to deter what are erroneously referred to as “illegal” arrivals, to enact and project its sovereignty claims (Pickering and Weber 2013). Along Australia’s inner “frontier”, in Australia’s NT, other contestations over sovereignty are taking place. In remote Australia, the Aboriginal population confronts fresh incursion of colonial power: and here issues related to movement through space are, as in other parts of the Global South, inseparable from

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contestations around the possession and ownership of place (Escobar 2011). To identify these renewed constraints on Indigenous mobilities in remote Central Australian communities, below we examine the settler state’s control of a crucial means of Warlpiri mobility: the motor vehicle.

STOP Signs on Song Lines Indigenous and non-Indigenous Australians have competing definitions of the meanings attached to driving. The “Automobility Paradigm” (Urry 2004) identifies the extent to which mobility, travel and the culture of the motor vehicle have become important sites of social meaning in contemporary society. John Urry’s (2004) notion of the “sociality” of driving is central to the new automobilities paradigm, traversing notions of ownership; the use (and use value) of the motor vehicle as a desired, fetishised object; and the road and automobile’s assemblages of highways, commodified leisure, environmental degradation, carnage and suburban space. However, Indigenous Automobilities, to a large extent, subvert and estrange the social meanings attached to driving in the Global North. In remote Australia, the automobile does not only function as an object of mobility, leisure and desire. Among Indigenous Australians, it also provides a meeting place for Indigenous family and kin (Frederick 2011, 103), a means to connect with Country (including remote, off-road spaces defined by songlines), and a channel for the transfer of favours and execution of Indigenous Law punishment (Mamarika v Murphy & Anor [2007] NTSC 58; Amagula v Chambers [2007] NTSC 59). These Indigenous automobilities are hybrid spaces where resurgence is enacted within a globalising space. Although the Global North and Indigenous people experience the automobile distinctly, and for their own ends, the automobile is nonetheless a critical agent of globalisation. Urry (2004, 25) writes that the “car” embodies the global technologies, as much as the cinema, television and computer. As an instrument of globalisation, the car is thus a feature of global domination by Western capitalism, according to postcolonial literature. It is an ambiguous gift that has disrupted traditional community and has delivered poverty and hardship as much as new opportunities for travel and greater individual autonomy for some (Okri 2009).

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At the same time, automobility has intensified the governmentality of modern life through regulating drivers’ licenses, registration and insurance. It has implanted STOP signs on bush tracks, punctuated travel with all forms of traffic signals and poured roads over songlines. Driving can intensify the colonial gaze for Indigenous people in other ways: the crime of “driving while black” limits the freedom and autonomy associated with driving, it reminds the Other that they never escape their racialised identities, even while participating in socially mainstream activities (see in relation to the United States: Lamberth 2010; Lundman and Kaufman 2005; Harris 1999, and in relation to Australia: Hopkins 2015).

 arlpiri Country, the Intervention W and the Policing Surge Warlpiri people are situated on the vast semi-desert area of central Australia, which is connected to cities, towns and communities by the 1000 kilometre Tanami Track described as “Hells Highway” and “the worst road in the nation” (Stewart 2013). It channels its way through Warlpiri Country, including the “hubs” of Yuendumu and Lajamanu, across dense scrub, spinifex and mulga. The road is gradually becoming sealed, but most bush roads in Central Australia remain red dirt, dusty, rutted and corrugated. However, many of these roads, once considered to exist outside of the white domain, are now becoming the subject of greater attention by mainstream authority. It became clear to us during interviews with government departments responsible for roads and traffic that the settler state believed that the very presence of a motor vehicle automatically enacts white law and authority, a process Spivak (1988) referred to as “worlding” the colony. Increased law enforcement since 2007 displaced a tacit agreement between police and Warlpiri that “off road” areas and tracks were not subject to the same enforcement practices as sealed roads. There was broad acceptance by Warlpiri people that the Tanami Track was a formal highway and subject to white standards of law and governance, but the

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dense network of back-roads and bush tracks either side of the Tanami Track were considered to lie, if not exactly within the Aboriginal domain, then at least occupying a liminal space between the Aboriginal and white domains, where these enforcement practices did not apply with the same rigor. A compromise was identified in remote parts of Western Australia, where unlicensed drivers would drive unregistered vehicles around Aboriginal communities without attracting formal censure (Trees 2004), or there would be a tacitly acknowledged bush track parallel to the main highway where Aboriginal people could drive without attracting police attention.

Signs and Wonders Aboriginal people in remote communities however, face increasingly denser and more complex intersections of cultures, laws and policies even when doing little more than driving to an outstation on a dirt road (Povinelli 2006). Unsealed dirt roads increasingly attract police attention and new street signs display white names for increasingly gazetted streets in desert communities. In Yuendumu, a “stop” sign was planted at what had become, virtually overnight, the main “junction” between roads at the centre of the community, with police waiting at the sign to charge drivers who disobeyed the sign. Carter (2010) reminds us that colonial possession is performed through the mapping and naming of the colonised space, while the structures and systems underpinning and enabling modern forms of mobility (gas-stations, motels, signs) function to normalise and domesticate white occupation of Indigenous space (Frederick 2011). Standing at the newly designated cross-roads in Yuendumu, observing the police impartially implementing the letter of the law (like the police of Paris who, in Anatole France’s famous phrase, could abide neither the rich nor the poor to sleep under its bridges), one could have been forgiven for thinking that the policing surge was a reaction to driving related offending in Central Australia. However, while driving was becoming a major policy issue in the NT and a police priority, the surge was a direct

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consequence of a major political response to claims of endemic child abuse in central Australia (see Jones 2006a, Jones 2006b). Despite its remoteness from mainstream white society, small central Australian Indigenous communities became the focus of intense national scrutiny by the white media and government in the months leading up to the 2007 NT Intervention, complementing growing border hysteria about “illegals” arriving on Australian shores. There was a negative synergy in play here as anxieties about the internal ordering of Australia, symbolised by the violence and chaos of Aboriginal communities (the enemy within), were complemented by fears about the sanctity of its shoreline (the enemy without). Security discourse of this kind in settler Australia, inflame white anxieties about invasion and dispossession—they displace the founding experience of colonisation onto both internal and external threats to white national sovereignty (Moreton-­Robinson 2007).

Big Response to Little Children The wellbeing of “sacred Aboriginal” children was a powerful mobilising trope for the NT Intervention, just as it has been in the hysteria over national borders (where asylum seekers “boat people” were wrongly accused with throwing their children “overboard”). Both issues generated demands for militaristic solutions. As we have traced in the foregoing chapters, the NT Intervention was a response to claims in May 2006 of the sexual abuse of children in remote NT communities and led to the initial mobilisation of Federal police to the NT in mid-2006. A year later an official inquiry (Wild and Anderson 2007) was released which, even though it recommended community capacity building as a solution and expressed some skepticism about official claims regarding the scale of abuse, was deployed by the Federal Government to proclaim an emergency in the Northern Territory and take control of, initially, 73 Aboriginal communities. The Northern Territory National Emergency Response Act 2007 (Cth) (the “Emergency Legislation”), which was directed at protecting Indigenous children from abuse (Brough 2007, 10) but effectively entailed broad-sweeping, racially discriminatory restrictions on Indigenous rights and self-governance. The government’s

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paternalist stance has been described as a new phase in the colonial dispossession of Indigenous Australia (Altman and Hinkson 2007). Among other things, the Emergency Legislation criminalised the possession, transportation, sale and consumption of alcohol in the 73 communities, which continued many pre-existing, Aboriginal-led community alcohol restrictions, but with more heavy-handed police enforcement. Public policing in remote Indigenous communities was extended through the deployment of Federal and Northern Territory Police and the military, the installation of 18 new police stations in communities, the broadening of police powers and the establishment of crime intelligence taskforces. The Emergency Legislation also strengthened policing powers in Aboriginal communities. For example, the police have the power, without a warrant, to randomly enter, search, seize or dispose of any “thing”, namely a vehicle, involved in the carriage or consumption of alcohol (Liquor Act (NT) s 95; Northern Territory National Emergency Response Act 2007 (Cth) s 17). This authorises the police to use their powers on Aboriginal land, including in Aboriginal cars and homes, as if it were a public place (Pilkington 2009, 55, 174). Greater police numbers and enforcement powers have been a gateway to the expanding criminalisation and incarceration of Aboriginal drivers. In mainstream Australia minor traffic infringements, such as driving unregistered, uninsured and unlicensed, driving without a seatbelt and not stopping at a “stop” sign are regulatory offences that are generally processed by way of a ticket (infringement notice) and a fine. However, in remote Indigenous communities in the NT, and Western Australia, these offences have fallen within the domains of courts and prisons, often due to the number of driving offences for which the defendant is simultaneously charged (Anthony and Blagg 2013). Following the Intervention there was a 250% increase in recorded police actions in relation to traffic offending (Northern Territory Police, Fire and Emergency Services 2006–2010). There have been particularly dramatic spikes in driving unlicensed and uninsured when comparing the four years preceding and the four years succeeding the roll-out of NT Intervention police in 2006. While Indigenous people in prescribed communities have had their driving heavily policed, they have not been provided with commensurate services to become licensed drivers with

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registered vehicles, making it difficult to legally drive. In remote NT communities it is usually the police that are both responsible for driver regulation and criminalisation. They have the ability to afford and, increasingly, deny Indigenous mobility.

Fatal Consequences Roads and vehicles create new pathways into “bare life” prisons, increasing the risk of custodial deaths. We discuss here only a few examples of Aboriginal deaths resulting from the criminalisation of traffic matters and detainment in corrections vehicles; but Aboriginal deaths from police pursuits (Lyneham and Hewitt-Rau 2013) or deaths in custody where a traffic offending is the most serious offence (see Baker and Cussen 2015) loom large. In the NT, Kwementyaye Jambajimba died while serving a 9-month prison sentence for driving whilst disqualified. His health deteriorated rapidly in prison and he ultimately died an undignified death without his family by his side and without their knowing at the time (Northern Territory Coroner’s Court 2015). Continuing this tragic pattern of unnecessary Warlpiri deaths in custody, Kwementyaye Japaljarri, described as a “cultural man” from Lajamanu, died after he was sentenced to prison for five months for driving while disqualified and low-range drink driving (Northern Territory Coroner’s Court 2018). He had previously been imprisoned 21 times primarily for driving while disqualified offences (2018, 3). Also indicative of over-policing of Aboriginal people in the NT, are the circumstances that contributed to the death in custody of Kwementyaye Jabaltjari from Yayayi (Northern Territory Coroner’s Court 2017). On 30 November 2015 and again on 2 December 2015 he was charged by police for driving unlicensed, unregistered and uninsured, low-range drink driving and carrying a passenger without a seatbelt (2017, 2). On 4 December he was sentenced to four months and 14 days imprisonment for these offences. He died just over a month later while serving his sentence for driving offences. The death of a respected Aboriginal Elder in Western Australia (called Mr Ward for cultural reasons) from the remote community of Warburton

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demonstrates how driving and the law-enforcement-vehicle produce a litany of Aboriginal harm, including for the community that has lost an important cultural knowledge holder. Mr Ward was arrested for “minor” traffic offences including driving under the influence of alcohol and driving contrary to his licence conditions (Western Australian Coroner’s Court 2009, 134). He was driving his Toyota predominantly on a dirt track (2009, 38). Although the police maintain that the arrest took place on a sealed road outside the town of Laverton, the Aboriginal Legal Service of Western Australia, based on evidence from the car’s passenger, argued that it was on a dirt track that was tacitly understood to be outside the white legal domain. Following his arrest, Mr Ward was detained in custody, denied bail and transported 352 kilometres to prison in Kalgoorlie by contractors G4S.  While in the back of the prison van, which had faulty air-­ conditioning, Mr Ward literally boiled to death. The two white contractors did not check on him once during the journey (2009, 83–84). It is impossible to imagine a scenario where this would have happened to a white person. The corrections vehicle was a mobile “camp” for an Aboriginal man worthy only of bare life, he was homo sacer, because none of those involved in the process of dehumanisation of Mr Ward were appropriately brought to account.

Mobility, Space and Stolen Place In Australia, Indigenous people have been attempting to reconnect with places stolen from them during the dispossession and protection eras—eras which have not ended. This inevitably brings many into conflict with white settler law. Whereas controls on movement were formally abolished at the end of the protection ist era in the 1960s, they were replaced by an overdeployment of facially impartial and neutral laws by police who are wilfully blind to Indigenous difference or overtly targeting their circumstances, providing them with a repertoire of legal powers to control and regulate Indigenous movement (Blagg et  al. 2005). Morphy and Morphy (2013) describe this kind of excessive and unmediated imposition of white norms, standards of behaviour, values and laws—even in places where Indigenous

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people constitute the majority population—as constituting an “hegemony of the mainstream”. A simple social constructivist account of the NT Intervention, focused solely on the settler state’s capacity to cunningly manipulate events and engender moral panic, leaves unaddressed the significant emotionally charged and irrational currents unleashed by the combined threats to the imagined integrity of the settler community by Indigenous disorder and lawlessness. The raw nerve of settler colonisation. The NT Intervention has continued the legacy of colonial policing that prepares the ground for the implantation of colonial law and sovereignty by “dispersing” Aboriginal people or moving them off their traditional lands. It is thus not surprising, given the historical role played by the police in relocating, concentrating and restricting the mobility of Indigenous people, that a process intended to reduce levels of child abuse and family violence in fact led to an increase in prosecutions around mobility. Tackling family violence in Indigenous communities, Wild and Anderson (2007) argued, requires a sophisticated blend of careful planning, multi-­ agency work and community capacity building. Not processes that played to the strengths of the NT or Federal Police. This is not to suggest that these incursions were met with no resistance. Warlpiri people have a long tradition of resisting colonial domination, particularly where this involved resisting the destruction of Aboriginal law and culture (Anthony and Chapman 2008). This is brought to life in the remaining sections.

Indigenous Automobilities and Places Lots of (mis)adventures have happened on the Tanami. Shout out to everyone who’s dodged a cow, hit a kangaroo, been stuck behind a road train, driven into the setting sun, blown a tyre, run out of fuel, had bits fall off their car, gotten bogged, broken down, and, of course, helped each other out. (Bush Mechanics 2001)

Aboriginal people, as we have gleaned from our research projects in Central Australia, have become heavily reliant on the motor vehicle, as there is little in the way of public transport. Furthermore, they love to

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drive. Automobiles have become incorporated as performative theatres of Aboriginal domain with interiors transformed into ceremonial space and sites of specifically Indigenous forms of sociability and culture. Indigenous Automobility in Central Australia has involved the syncretic incorporation of the car into the Aboriginal domain. Among the Warlpiri, the road and the motor vehicle are valuable mechanisms for pursuing traditional, collective goals and expressing distinctively Aboriginal values. The car has not dissolved Aboriginal sociability or ensured cultural homogenisation, rather it has provided a new means of expressing Indigenous identity. The car has been “Indigenised” (Appadurai 1990). Warlpiri automobility is distinctively collective. The seating allocations reflect the performance of relationship protocols and Warlpiri Laws, including “avoidance” relationships which bar people in particular relationships from being in close proximity, engaging in conversation and having eye contact (for example a women and her son-in-law). Warlpiri Law also determines expectations about being driven around by others. In other words, the car and the road give rise to a Warlpiri social ontology. More explicitly, the car allows Warlpiri people to escape white authority, especially when it involves travelling off roads and down bush tracks onto ceremonial Country. Cars facilitate connection, and reconnection, with traditional places, sacred sites and homelands, seeing (and singing) “Country”, and transporting initiates to law business grounds (Peterson 2000). The car is an Indigenous place, not just a means of traversing space.

 he Pleasures and Pressures of Warlpiri T Driving Driving allows Indigenous people to give and receive favours. It also allows involvement in sporting events, funerals, ceremonies and social occasions as well as visiting relatives in prison, acquiring goods not available in the local store and accessing basic services in towns. John Urry’s (2004, 28) “socialities” of automobility, that include “commuting, family life, community, leisure, the pleasures of movement and so

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on”, are shared by Warlpiri people. Warlpiri automobility, however, is subject to Warlpiri norms and values that privilege obligations to kin and Country above individual autonomy and freedom. While vehicles can be a means of providing favours, they can also be the source of jealousy (Blagg and Valuri 2004). Reflecting their status as a prized cultural object, the damaging of vehicles in recent years has led to some dramatic “payback”2 incidents, as mentioned above. For example, in Amagula v Chambers [2007] NTSC 59, the defendant, who had no previous convictions, was pursuing “payback” against members of the Untunga clan on Groote Eylandt by damaging five cars. His young cooffender, Mamarika, was involved in the payback due to family pressure and “cultural imperatives” and it did in fact result in the families resuming on good terms. The payback arose because the opposing clan members behaved in an inappropriate manner towards Mamarika’s family (Mamarika v Murphy & Anor [2007] NTSC 58, [26], [30]). The vehicles, rather than the persons’ bodies, were regarded as an appropriate target for payback, revealing the importance of vehicles within the community. Saying that the car is culturally prized is not the same thing as saying its popularity ensures Indigenous cooption into settler colonial values, a mistake that is frequently made when interpreting Indigenous consumption of white goods and services. From the early days of rationing, missionisation and assimilation, whites have assumed that involvement in such institutions has “de-tribalised” Indigenous people. A contrapuntal narrative suggests that such readings ignore the extent to which Indigenous people have lived in and engaged with white institutions, worked in white industries and consumed white products while also resisting and refusing attempts to surrender core elements of Indigenous law and culture. The retention of the Walrpiri cultural domain and syncretic accommodation of the automobile in Warlpiri culture is celebrated in the work of the Yuendumu bush mechanics.

 Payback occurs where Indigenous Law punishment does not proceed and the offender remains unpunished by the community’s lawful process. Consequently, individuals take it upon themselves to punish the offender and/or his/her family (see Loy 2010). 2

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Bush Mechanics Bush Mechanics is a popular 2001 television documentary series produced by Warlpiri Media. The Bush Mechanic is an Aboriginal cultural hero, someone able to employ wildly unorthodox techniques and “bush” materials to fix cars. The skills range from cannibalising abandoned vehicles (and here there is a clear preference for old cars, as newer ones have complex electrical circuitry) through to fixing gearboxes and brakes by surgically implanting tree bark and grass. In one episode of the series, one of Yuendumu’s (many) bush rock bands created a trailer, by taking an axe to the roof of dilapidated station wagon and dragging it behind the vehicle upside down to accommodate their equipment. Elders routinely appear in episodes to provide a cultural narrative, stressing Warlpiri values and cultural continuity. In another episode, the issue of “payback” (ritualised use of physical violence, such as spearing the thigh) and its cultural context are discussed, as is the conflict this creates with white law. Bush Mechanics reveals how Warlpiri people can ingeniously appropriate the vehicle without necessarily buying into the commodity fetishism that accompanies car ownership in the mainstream. Cars are endlessly recyclable and mutable objects, continuously being hybridised. Warlpiri mechanics also create interesting forms of cultural bricolage as Western objects are fused with bush materials, giving them fresh existence that syncretises the unique cultural status of the vehicle. It also disturbs the “specific character of domination” (Urry 2004, 25) created by the automobile, in terms of its links to Fordism and mass-production, individual consumption, the “complex” of driving related infrastructures, and culturally generated notions of what constitutes “the good life”. The Bush Mechanics series demonstrates Warlpiri guile, astuteness and craftiness. Their mastery of bush craft and their capacity to maintain the automobile beyond the planned obsolescence of the western commodity somehow reclaims a degree of cultural agency, autonomy and authenticity. The influx of white police, mainly bureaucrats, on Warlpiri communities and the greater focus on policing tracks and back-roads will inevitably restrict the scope for hybrid automobility. The increased presence of newer electrically driven vehicles will also make cannibalisation more difficult. Yet, Warlpiri have demonstrated a remarkable degree of cultural resilience since colonisation.

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Road Safety and (A)Cultural Strategies The surge in police numbers in remote communities also coincided with a range of new initiatives intended to reduce the death toll on NT roads and clamp down on driver offending—especially driving unlicensed, unregistered and uninsured, but also driving disqualified and drink driving. Interviews with police and government officials involved in road safety found an implicit and unspoken belief that improving road safety required no dialogue with the Aboriginal domain and its spokespersons (local Elders), or that any “campaign” should be couched in languages and formats that Aboriginal people could, themselves, own and understand. We found a general belief among police and bureaucrats (particularly those we interviewed in Darwin), with one or two exceptions, that Aboriginal people and their representative structures could not be trusted or incorporated in a partnership. There were some profoundly disturbing racial stereotypes at play. Aboriginal people were often presented as fundamentally dishonest, sly and deceitful, preferring to take government handouts rather than clean up their communities and get jobs. Furthermore, there was no benefit to be had from collaborating with Aboriginal organisations (seen as nepotistic and corrupt): enforcement from above and “one law for everyone” were the only solutions. This was despite the fact that Yuendumu and Lajamanu, far from being sites of anomie, had developed a number of resilient and highly respected structures adept at bridging Warlpiri and non-Warlpiri domains and working “both ways” (see Chap. 10). Lajamanu, as discussed in the previous chapter, had been the site of a number of long running and respected Law and Justice strategies and structures (Ryan 2001, 2005; Ryan and Antoun 2001). The Mt Theo Youth Diversionary Program, established initially to stop petrol sniffing, has developed a sophisticated, holistic program involving education, employment and cultural engagement to offer meaningful and safe programs for youths on communities in Central Australia, an approach ultimately  endorsed by government (see Department of Families, Housing, Community Services and Indigenous Affairs 2009). Through its Mechanic

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Training initiatives, the Mt Theo program has shown that, when properly resourced, it has the capacity to handle skill enhancing, job-ready projects that could complement new initiatives on Yuendumu and Lajamanu. Such initiatives should be supported by community-directed education that is run by local people, in Indigenous languages and employing culturally appropriate and relevant programs. White narratives about Central Australia, however, stressed dysfunction and anomie. In contrast we found—despite the multiple problems facing the Aboriginal domain due to ongoing colonial incursions—a pool of energy focused on improving conditions and fostering Aboriginal laws. The interesting issue, from our perspective, was not Aboriginal dysfunctionality but the unwillingness of agencies to build upon the cultural and institutional strengths of the community in relation to road safety strategies. de Sousa Santos (2008, xix) describes the colonial practice of ignoring and suppressing Indigenous Knowledge as “wasting knowledge” or “epistemicide”. Aboriginal people attenuate this destruction through employing hybrid strategies.

 ialectics of Indigenous Refusal (We’ve D Looked at Life from Both Sides Now) The question we are left with is: given the fact that Indigenous people in the NT have some highly regarded self-governing structures in place, why, with the exception of Night Patrols, did the NT Intervention authorities refuse to work with them? There are a number of possible explanations. For the Australian Government unassimilated Indigenous Australia represents the unfinished business of colonisation: the persistence of semiautonomous Indigenous organisations, particularly Indigenous councils, remained a barrier to a fully-realised nation state. The situation demanded displays of sovereign power that symbolically ironed out the kinks in the national landscape. Secondly, the border hysteria that has dominated Australian politics in recent years has raised classic colonial fears of miscegenation and mixedness. In such situations colonial states are threatened by the play of hybridity, not intent on nurturing it. Night Patrols, discussed earlier, were an exception because they were comprehensible

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within white terms of reference as fulfilling a “policing” role, and, as with Native Police auxiliaries in the colonial past, amenable to white control. In our research we witnessed increasing conflict between Warlpiri over the policing of dirt tracks (Anthony and Blagg 2012) and the tendency for them to be policed as though they were any road in the nation state, a process also taking place in remote areas of Western Australia (Skyring 2011, 385). Furthermore, the borders between the Aboriginal and non-­ Aboriginal domains were also shrinking inwards, from the outskirts of Indigenous communities to their centre, through the implantation of white signs, codes of behaviour and forms of policing. There were fewer locally negotiated arrangements that permitted non-standard forms of driving. This squeeze on the Aboriginal domain was reflected in increasing rates of prosecutions and imprisonment. We sat in court and witnessed senior Aboriginal Elders (men and women) being gaoled for minor driving related matters that would have passed unnoticed before the NT Intervention—these often involved driving around the community without a license while fulfilling cultural obligations (taking aunty to the clinic, going to the store for milk). From within a postcolonial framework it was possible to see the current obsession with illicit Indigenous Automobility as simply an extension and repetition of traditional obsessions with unconstrained Indigenous mobility that has always unsettled white claims of unambiguous possession. Remote communities have also had some “wins”. In 2008, the NT police was forced to publicly apologise to the Lajamanu Warlpiri  community when two officers “trespassed” on sacred law grounds adjacent to the community while allegedly investigating traffic matters, and have since resolved to stay off the roads leading to the site (Anthony and Chapman 2008). Though constrained, community owned organisations such as the men and women’s patrols, the men and women’s safe houses and Law and Justice committees, continue to function and provide valuable services “Yapa way” (meaning through local Warlpiri forms of knowledge). We conclude that mobility and automobility became hot sites of contestation, enforcement and refusal in a long running, multi-­faceted conflict between the settler state and Warlpiri people. Despite fresh colonial incursions, the Tanami Desert still provides a dense patchwork of tracks, camping grounds, sacred sites, ceremonial grounds, homelands and

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outstations, and places to hunt: offering scope for Warlpiri people to escape white law and order, off the beaten track and beyond the gaze of white authority, remaking and strengthening law and culture through the medium of the automobile.

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Australian Government/Closing the Gap (2012) Stronger Futures in the Northern Territory: Implementation Approach for Community Night Patrols. Canberra: Australian Government. ——— (2014) Prime Minister’s 2013 Closing the Gap Report. Canberra: Australian Government. Australian National Audit Office (2011) Northern Territory Night Patrols, Auditor-General’s Performance Report No 32 2010–11. Canberra: Attorney-­ General’s Department. Baker A and Cussen T (2015) Deaths in Custody in Australia: National Deaths in Custody Program 2011–12 and 2012–13. Monitoring Report No. 26. Canberra: Australian Institute of Criminology. Barcham M (2010) “Indigenous Community Policing: Building Strength from Within”. In J Putt (ed) Community Policing in Australia. Research and Public Policy Series No. 111. Canberra: Australian Institute of Criminology, 49–53. Beacroft L, Richards K, Andrevski H and Rosevear L (2011) Community Night Patrols in the Northern Territory: Toward an Improved Performance and Reporting Framework. Technical and Background Paper Series No. 47, Australian Institute of Criminology. Bear Clan Patrol (2018) “About”. https://www.bearclanpatrolinc.com/ Bhabha H K (1994) The Location of Culture. London: Routledge. Blagg H (2003) An Overview of Night Patrol Services in Australia. Canberra: Crime Prevention Branch, Commonwealth Attorney-General’s Department. ——— (2006) Models of Best Practice: Aboriginal Community Patrols in Western Australia. Perth: Crime Research Centre, University of Western Australia. Prepared for the Office of Crime Prevention Unit, Perth, WA. ——— (2016) Crime, Aboriginality and the Decolonisation of Justice. 2nd ed. Sydney: Federation Press. Blagg H and Anthony T (2014) “If Those Old Women Catch You, You’re Going to Cop It: Night Patrols, Indigenous Women, and Place Based Sovereignty in Outback Australia”. African Journal Of Criminology And Justice Studies 8(1): 103–124. ——— (2019) “Roads to Freedom? Indigenous Mobility and Settler Law in Central Australia”. In P Carlen and L A Franca (eds) Justice Alternatives. Oxon: Routledge, 144–157. Blagg H, Morgan N, Cunneen C and Ferrante A (2005) Systemic Racism as a Factor in the Over-representation of Aboriginal People in the Criminal Justice System. Report to the Equal Opportunity Commission and Aboriginal Justice Forum, Melbourne.

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Australian and New Zealand Criminology, Crime and Justice. Basingstoke: Palgrave Macmillan, 667–682 Curtis D (1993) “Julalikari Council’s Community Night Patrol”. In S McKillop (ed.) Aboriginal Justice Issues: Proceedings of a Conference, 23–25 June. AIC Conference Proceedings No. 21. Canberra: Australian Institute of Criminology. de Sousa Santos B (ed) (2008) Another Knowledge Is Possible: Beyond Northern Epistemologies. London: Verso. Department of Families, Housing, Community Services and Indigenous Affairs (2009) “Closing the Gap in the Northern Territory: Monitoring Report July– December 2009 Part Two”. Canberra: Commonwealth of Australia. https:// www.dss.gov.au/sites/default/files/documents/01_2013/part_2_nter_monitoring_report_31jan.pdf Ek R (2006) “Giorgio Agamben and the Spatialities of the Camp: An Introduction”. Geografiska Annaler: Series B, Human Geography, 88(4): 363–386. Escobar A (2011) Encountering Development: The Making and Unmaking of the Third World. Princeton, NJ: Princeton University Press. FaHCSIA (Department of Families, Housing, Community Services and Indigenous Affairs) (2009) Closing the Gap in the Northern Territory: Monitoring Report July–December 2009. Part Two. Canberra: Commonwealth of Australia. Finnane M (1994) Police and Government: Histories of Policing in Australia. Melbourne: Oxford University Press. Finnane M and McGuire J (2001) “The Uses of Punishment and Exile: Aborigines in Colonial Australia”. Punishment and Society 3(2): 279–298. Frederick U (2011) “Roadworks: Automobility and Belonging in Aboriginal Art”. In U Frederick and L Stefanoff (eds) Humanities Research Journal Series—Cruising Country: Automobilities in non-urban Australia 27(2): 81–107. Gaykamangu J G (2012) “Ngarra Law: Aboriginal Customary Law from Arnhem Land”. Northern Territory Law Journal 2: 236–248. Hannam K, Sheller M and Urry J (2006) “Editorial: Mobilities, Immobilities and Moorings”. Mobilities 1(1): 11–22. Harris D (1999) “Stories, the Statistics, and the Law: Why Driving while Black Matters”. Minnesota Law Review 84: 265–326. Higgins D and Associates (1997) Best Practice for Aboriginal Community Night Patrols and Warden Schemes: A Report to the Office of Aboriginal Development. Darwin: Northern Territory Office of Aboriginal Development.

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Moreton-Robinson A (2007) “Writing Off Indigenous Sovereignty: The Discourse of Security and Patriarchal White Sovereignty”. In A Moreton-­ Robinson (ed) Sovereign Subjects: Indigenous Sovereignty Matters. Sydney: Allen & Unwin, 86–102. Morphy F and Morphy H (2013) “Anthropological Theory and Government Policy in Australia’s Northern Territory: The Hegemony of the ‘Mainstream’”. American Anthropologist 115(2): 174–187. Newburn T (ed) (2008) Handbook of Policing. London: Routledge. Northern Territory Law Reform Committee (2003) Report of the Committee of Inquiry into Aboriginal Customary Law: Report on Aboriginal Customary Law. Darwin: NTLRC. Okri B (2009) The Famished Road. London: Vintage. Pawu-Kurlpurlurnu W J, Holmes M and Box L. 2008. Ngurra-kurlu: A Way of Working with Warlpiri People, DKCRC Report 41. Desert Knowledge CRC, Alice Springs. Peterson N (2000) “The Expanding Aboriginal Domain: Mobility and the Initiation Journey”. Oceania 70(3): 205–218. Pickering S and Weber L (2013) “Hardening the Rule of Law and Asylum Seekers”. In E Stanley and J McCulloch (eds) State Crime and Resistance. London: Routledge, 183–198. Pilkington J (2009) Aboriginal Communities and the Police’s Taskforce Themis: Case Studies in Remote Aboriginal Community Policing in the Northern Territory. Darwin: North Australian Aboriginal Justice Agency and Central Australian Legal Aid Service. Porter A (2016) “Indigenous Patrols, Counter-Policing and Safety”. Theoretical Criminology 20(4): 548–565. Povinelli E (2006) “Finding Bwudjut: Common Land, Private Profit, Divergent Objects”. In T Lea, E Kowal and G Cowlishaw (eds) Moving Anthropology: Critical Indigenous Studies. Darwin: Charles Darwin University Press, 147–166. Putt J & FaHCSIA (Department of Families, Housing, Community Services and Indigenous Affairs) 2011. ‘Research into Community Safety, Wellbeing and Service Provision’, Northern Territory Emergency Response: Evaluation Report. Canberra: FaHCSIA. Reiner R (2000) The Politics of the Police. 3rd ed. Oxon: Oxford University Press. Royal Commission into Aboriginal Deaths in Custody (1991) National Report. Canberra: Australian Government Publishing Service.

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Ryan P (2001) Lajamanu Night Patrol Service. Darwin: Office of Aboriginal Development. ——— (2005) The Evolving Role and Functions of Remote Area Community Patrols in Dispute Resolution: A Discussion Paper. Darwin: Department of Justice. Ryan P and Antoun J (2001) Law and Justice Plans: An Overview. Darwin: Office of Aboriginal Development. Sampson A, Stubbs P, Smith D, Pearson G and Blagg H (1988) “Crime, Localities and the Multi-Agency Approach”. British Journal of Criminology 28(4): 478–493. Sheller M and Urry J (2006) “The New Mobilities Paradigm”. Environment and Planning 38: 207–226. Sims M, Cooper T, Barclay E, and Scott, J (2019) “Making Sense of Indigenous Youth Night Patrols”. Administration & Society 51(4): 664–686. Skyring F (2011) Justice: A History of the Aboriginal Legal Service of Western Australia. Perth: University of Western Australia Publishing. Spivak G C (1988) “Can the Subaltern Speak?” In P Williams and L Chrisman (eds) Colonial Discourse and Post-Colonial Theory: A Reader. New  York: Columbia University Press, 66–111. Stewart A (2013) “Hellish ‘Highway’ Attacked as Worst in Nation”. Australian Broadcasting Corporation News, 28 May. http://www.abc.net.au/news/201305-28/tanami-road-conditions-attacked-as-worst-in-nation/4717660 Stojanovski A (2010) Dog Ear Café: How the Mt. Theo Program Beat the Curse of Petrol Sniffing. Melbourne: Hybrid Publisher Tangentyere Council Patrollers and Elek C (2007) “Relhe Marre Tnyeneme: Community Patrols in Alice Springs: Keeping People Safe”. Indigenous Law Bulletin 6(28): 24–26. Te Puni Kōkiri (2017) “Mãori Wardens: A Proud Tradition”. https://www.tpk. govt.nz/en/mo-te-puni-kokiri/our-stories-and-media/maori-wardensa-proud-tradition Trees K (2004) Background Paper on Contemporary Issues Facing Customary Law and the General Legal System: Roebourne—A Case Study. Aboriginal Customary Law Inquiry, Law Reform Commission of Western Australia. Perth: Law Reform Commission of Western Australia. Turner-Walker J (2010) Clash of the Paradigms: Night Patrols in Remote Central Australia. Thesis presented for the degree of Master in Criminal Justice. University of Western Australia, Crime Research Centre, Faculty of Law.

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Urry J (2004) “The ‘System’ of Automobility”. Theory, Culture & Society 21(4/5): 25–39. Walker J and Forrester S (2002) “Tangentyere Remote Area Night Patrol”. Paper presented at the Crime Prevention Conference, 12–13 September. Sydney: Australian Institute of Criminology and the Crime Prevention Branch, Commonwealth Attorney-General’s Department. Wild R and Anderson P (2007) Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’: Final Report of the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse. Darwin: Northern Territory Government. Willis M (2010) Community Safety in Australian Indigenous Communities: Service Providers’ Perceptions. Research and Public Policy Series No. 110, Australian Institute of Criminology, Canberra.

Legal Materials Amagula v Chambers [2007] NTSC 59. Mamarika v Murphy & Anor [2007] NTSC 58. Northern Territory Coroner’s Court (2015) Inquest into the Death of Desmond (Kumintji) Jambajimba Tilmouth [2015] NTMC 003. ——— (2017) Inquest into the Death of Ray Jabaltjari Gibson [2017] NTLC 003. ——— (2018) Inquest into the Death of Addison Japaljarri Anthony [2018] NTLC 001. Northern Territory National Emergency Response Act 2007 (Cth). Western Australian Coroner’s Court (2009) Inquest into death of Ian Ward, Record of Investigation into Death, Western Australian State Coroner, Ref. 9/09.

12 Conclusions: State of Exception and Bare Life in Criminology and Criminal “Justice”

Colonial relations are reproduced through the “universalisation” of the criminal justice system that excludes Indigenous rights, self-­determination and sovereignty. Indigenous scholar Mark Rifkin (2009, 91) argues that Indigenous people exist in a state of exception that legitimates the state’s monopoly on sovereignty and its “exclusive uncontestable right to define what will count as a viable legal or political formulation”. In other words, universalism is normalised through the exception. The dialectic of universalism and exception are constantly at play in the application of penality to Indigenous people, the denial of Indigenous Laws and the suspension of protections for Indigenous lives. Through casting Indigenous peoples’ resistance as criminal, and thus an exception to the norm, the state conceals the illegal colonial land grab, denigrates Indigenous Laws as outside of the recognised judicial order (Stark 2016), and characterises Indigenous justice mechanisms as a sideline, even fanciful, “program”. This fulfils the state’s purpose of excluding Indigenous legality and entrenching the state’s universalist claims. Universalism also infects the discipline of Criminology, which is prone to extrapolating its norms of penality, risk and incarceration across space, while marginalising, or simply ignoring, Indigenous Knowledges, Laws © The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3_12

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and practices that operate on-place. They are denied legitimacy while Criminology attends to the danger posed by the Other. Criminology has normalised the extreme violence the colonial justice system and its allied structures continue to perpetrate against Indigenous peoples. It has rationalised the hyper-criminalisation of Indigenous people, with reference to metrics and meta-theories of the Global North. Ascribing Indigenous people an offender identity and non-Indigenous people a victim identity, renders hyper-criminalisation as lawful and just, and thus obscures the historical and contemporary function of criminalisation in dispossession and land theft. It enables colonisers to proclaim a civilising mission in relation to the Indigenous “savage” (including its contemporary Indigenous male predator), while the coloniser profits from the unlawful takeover of Indigenous land and destruction of Indigenous communities. The dialectic of universalisation and exceptionalism operates to belittle attempts by Indigenous people to bring strength, safety and well-being to their societies and lives. When the settler colonial  state engages with Indigenous justice initiatives, its treats Indigenous agency as exceptional to its real work. As we see in relation to the grudging acceptance of Indigenous forms of self-policing, Law and Justice planning and other such initiatives, they go unnoticed and un-recognised because they cannot achieve an accredited existence as “real” practices intervening in the real world and confronting real issues. They are relegated to the backstage, while the state (and private) police, corrections and prisons take the centre stage. Criminology of the Global North has no lens to view such initiatives other than against the “real” objectives of reducing crime and recidivism numbers. Exceptionalism also informs the treatment of Indigenous lives as of lesser value, and even dispensable, in the criminal justice system. The settler colonial state—in its blinkered pursuit of universalism—is bewildered by the continuing existence of Indigenous people, given they were marked for extinction after the great rupture that brought modernity. Through settler eyes, Indigenous people appear as relics of some bygone age, loitering aimlessly on the street corners of modernity, not actors on the stage of life. The standard of care applied to Indigenous adults and children, men and women, in the criminal justice system is barely higher than that of an animal (see Whittaker 2018; Anthony 2018). The rhetoric of “emergency” has enabled torturing, gassing, suffocation and all

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manner of conduct that reduces Indigenous people in custody to bare life (see Royal Commission 2017; Pugliese 2018). They are stripped of their humanity and relationality to a community of worthy lives (Agamben 1998). The reduction of Indigenous life to bare life has been the signal feature of settler colonial justice. Although there are variances among the settler colonies, and differences were shaped inter alia by place-based responses of Indigenous peoples (including responses of resistance, refusal and resurgence), colonisers had “little imagination” and endeavoured to spread the same colonial governmentality over Indigenous peoples across their Empires, as Mick Dodson (2010) described. This included introducing the prison as the penultimate, although not exclusive, means of controlling the colonised. For Indigenous people in settler colonies, colonial practices of domination and control, including through prisons, were foreign concepts (according to Moana Jackson, Juan Tauri and Glen Coulthard), and antithetical to Indigenous ways of being, relating, knowing and doing: their ontologies, epistemologies and methodologies.

Bare Life Outside of the Prisons In this book we have argued that torture and death are not confined to criminal justice institutions. Despite the central place of the penal prison in the criminological imaginary, Indigenous experiences of carceral colonialism extend to protectionist, welfare and administrative confinement and not merely penal incarceration (see Chap. 5). And, it exists beyond confinement—in the everyday experience of discriminatory governance regimes and racist practices: in the forced removal of Indigenous children to out-ofhome (state) care, the denial of treatment to Indigenous people in health systems (see Dunlop 2019) and the racial violence by settlers on the streets (see, for example Behrendt 2016). It is enlivened across “universal” laws—in the form of institutional or systemic discrimination (Blagg et al. 2005)— and as a result of different, overtly discriminatory laws, such as in the Northern Territory  Intervention. Employing an Agamben framework we have asserted that a focus on the prison system alone creates an artificial binary between penal incarceration and other sites of enforced confinement for settler-colonised peoples.

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We consider Agamben’s (1998, 18) notions of the “camp”, “bare life” and “inclusive exclusion” to be perceptive analytical instruments capable of illuminating the anomalous ways in which Indigenous peoples have been included in “society” only through their exclusion, and how settler law applies to them as a “jurisprudence of emergency” (Hussain 2003, 7, 20–21). Throughout this book we have referred to the suspension of the rule of law and protections against racism as part of the Northern Territory Intervention, which renounced Aboriginal rights to welfare, land and self-governance, alongside increasing police powers in Indigenous communities. The Intervention was introduced in 2007 as an exceptional measure taken by the state to address “emergency” problems in Aboriginal communities. In this way, the policy was crafted by the settler state as not merely necessary, but also benevolent. The bending and adapting of universal laws, to exclude and penalise Aboriginal people, was premised on saving Aboriginal people, especially Aboriginal women and children. The “emergency” in the Northern Territory has justified all forms of oppression and harm within and outside detention and exculpated those responsible for inflicting the harms. Tactics of external border control have come to be enforced on internal borders circumscribed around Indigenous communities such as in the Northern Territory. Similarly, tactics of imprisonment have been employed on the outside: through controlling mobilities in Indigenous communities and on Indigenous places (see Chap. 11). Franz Fanon and Albert Memmi describe these borders as creating a “Manichean” divide between coloniser and colonised demarcated by police stations, arbitrary roundups, holding centres, internment camps and the routinisation of “states of exception” and  extra-judicial measures. These techniques are deployed against both perceived internal and external threats to national homogeneity (Gilroy 2011, 23). Implicit in colonial processes of Indigenous dispossession, whatever their guise, is the problematisation of Indigenous people at large. Criminology’s carceral focus has only been capable of conveying one aspect of Indigenous experiences of colonisation, which does not start or end at the prison gate.

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Decolonising Criminology We have argued that mainstream Criminology is complicit in reproducing and affirming the normativity of the colonial matrix of power through its adherence to Euro-north American worldviews, methods and theoretical traditions that subjugate and silence Indigenous peoples. Quijano (2007, 168) identified the colonial matrix of power as consisting of control over the economy, control of authority, control of gender and sexuality, and, control over knowledge. In this book we have coined this control a “carceral archipelago” surrounding and subjugating Indigenous peoples’ lives (Chap. 7; see also Blagg and Anthony 2018). These controls were initiated through the enforced movement of Indigenous people to various camps of bare life, encompassing institutions such as reserves and missions, lock-ups, hospitals, islands, orphanages and gaols. They also shape day-to-day contemporary Indigenous experiences of oppressive and discriminatory institutions, such as state child protection. Despite this, Indigenous peoples demonstrate resilience and survival in the face of ongoing colonial incursions. It has been our intention in this book to liberate the criminological imagination from the straitjacket of Euro-north  American orthodoxy and encourage scepticism about its Universalist pretension, while opening up spaces where alternative, heterodox ideas and values can be imagined and articulated.

Three Rs: Refusal, Resistance and Resurgence Indigenous peoples globally have refused and resisted playing along with the fiction of colonial settler sovereignty over their land, and remain suspicious of forms of “cunning” recognition (Povinelli 2002) that are big on symbolism and short on substance. Substance is, was and always will be, Aboriginal land. Land remains the cornerstone of Indigenous demands for justice, in much the same way as possessing Indigenous land was, according to Lisa Ford (2010), the “litmus test” of settler colonial power. Focusing on a grounded and nuanced approach, we deploy postcolonial notions of refusal and resistance that enliven place-based and ­place-­centred

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practices and maintain Indigenous norms and values. By refusing “to stop being themselves”, Indigenous people are furthering decolonisation and self-determination (Audra Simpson 2014, 2). Identifying these practices as acts of sovereignty challenge dominant structures and norms in the Criminology of the Global North that perpetuate what Morphy and Morphy (2013, 174) refer to as the “hegemony of the mainstream”. The third “R”, that of resurgence, represents, perhaps, the most critical dimension of Indigenous decoloniality. Resurgence hinges on Indigenous self-determination (Coulthard 2014b) and produces power sharing that unsettles the complacent foundations of colonialism and its claims to land (Alfred 2009, 182). Leanne Betasamosake Simpson (2014, 1) explains that resurgence enables Indigenous people “to grow up intimately and strongly connected to our homelands”. It involves the revitalisation of Indigenous Laws, governances, political cultures, languages, ceremonies and dance (Simpson 2011). As Contassel and Scow maintain: [R]esurgence is about renewing, remembering, and regenerating Indigenous nationhood and relationships. Practicing everyday acts of resurgence and personal decolonization entails having the awareness, courage, and imagination to envision life beyond the colonial state. (Corntassel and Scow 2017, 56; see also, Corntassel 2012)

Resurgence is, therefore, enacted across multiple sites and experiences ranging from the returning of traditional lands to reclaiming the “everyday”. One area relates to the way Indigenous men are resurrecting and redefining forms of Indigenous masculinity in the face the colonial state’s long war against them which has led to physical genocide, mass incarceration and derogatory stereotyping (as violent sexual predators, criminals and drunks) (Anderson and Tilton 2017). Indigenous women too have initiated collectives, Night Patrols and other community safety initiatives (e.g. enforcing dry zones) to maintain their authority and defy the settler colonial attribution of passive objects. Another area relates to Law and Justice planning where remote Northern Territory Aboriginal communities have taken leadership in renegotiating relationships with the police and government to enable the peaceful conduct of ceremonies and maintain connections to Aboriginal Law and Country.

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 ecolonisation of Criminology is a Verb Not D a Noun The decolonisation of theory and method remains the most significant task, and challenge, facing Criminology in contemporary settler colonial societies. Even Criminology globally requires a decolonising process given the extent to which neo-liberalism is instantiating a new postcolonial present that is sharpening the distinctions between north and south, centre and periphery, the West and its Others. The cultural domination of the coloniser is far from complete, but continues to be defined by the struggles of hegemony and resistance (Comaroff and Comaroff 1991, 28) and contested performances (Hirsh and Lazarus-Black 1994, 2). Ongoing Indigenous practices of empowerment, self-governance, sovereignty-­ making, resurgence and organised Indigenous resistance, reconstitute the role of hegemony in Indigenous peoples’ lives and identities (Deer 2011).1 Mainstream human rights discourse is no substitute for Indigenous sovereignty. Indigenous land sovereignty cannot wait in the wings while what we believe to be the critical tasks of building a human rights framework based on the pillars of individual civil rights and equality are completed. As a number of critics identified at several stages of this book argue, there is significant incommensurability between the Western human rights agenda and the sovereignty demands of Indigenous peoples. They do not simply fuse together into a seamless whole or, even less, a political program. Indigenous demands need to be addressed in their singularity, cognizant of their own historical time frames, meanings and experiences. Further, the process of decolonisation goes on across a multiplicity of sites. We have alluded to the progress being made to decolonise disciplines in the academy, including Psychology, History, Health and Social Work—which leave Criminology in their distant wake. Augustine Park’s (2015, 273) statement that the field of transitional justice should “advance demands for decolonisation and be an ally to activities and movements that work towards that end”, could relate equally to Criminology.  For an Australian example, see Banjo Woorunmurra and Howard Pedersen’s (2011) Jandamarra and the Bunuba Resistance: A True Story, which tells the story of organised resistance against colonial forces in the Kimberley. 1

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Slowly, and reluctantly, the mainstream is beginning to acknowledge that immersion in programs—designed centrally by non-Indigenous people working from scripts written in environments far removed (physically and epistemically) from where Indigenous people live—do not work for Indigenous people. There is increasing agreement that place-based initiatives, designed and managed by Indigenous communities offer the best hope for healing the hurts inflicted on Indigenous families and communities since colonisation. They are unencumbered of white racism, privilege and hierarchies of oppression. Land and place are powerful features in newly-created alternatives to mainstream programs. However, it is likely that place and Country will become new sites of contestation between Indigenous groups and the state as the latter seeks to impose its notions of governmentality onto these initiatives. There are inherent dangers that fresh “camps” will be created, a hollowed out version of place-­ based practice, emptied of Indigenous Knowledge, Law, culture and sovereignty in the name of accountability and risk management. Indigenous people are often the object of repressive violence by the settler state, but they are also the object of deficit narratives by academics, advocates, social justice entrepreneurs, and others unwilling or unable to grasp the specificity of Indigenous demands for decolonisation and sovereignty, obscured under interpretative schemes that project Northern impulses around individual or group rights as universally appropriate. As we have suggested, relationships between Indigenous people and the mainstream need decolonising, not reconfiguring. To be relevant, Criminology needs to shed its “control freak” (Agozino 2010) tendencies and embrace a post-disciplinary dynamic that eschews Western disciplinary knowledge as the norm and engages Indigenous Knowledges. Our aim has not been to add to the corpus of Criminology knowledge, or extend Criminology’s orbit of influence, in a further act of colonial expansion. Rather, we assert the need for post-disciplinary research that tests out new alignments and partnerships with those currently excluded from discussions  and produces new knowledges and ways of knowing and doing. This is an ongoing and dynamic struggle that does more than challenge Criminology and the criminal justice systems that it upholds, but the sovereignty claiming that underlies them.

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Index1

A

Abolitionism, 13, 42, 46, 154 Aboriginal children, 4, 108, 115, 120, 178, 190–191, 193–195, 210, 216–218, 251, 300 Aboriginal Courts, see Indigenous Sentencing Courts, Circle Sentencing Courts, Community Courts, Koori Courts Aboriginal Customary Law cultural and spiritual beliefs, 110 international human rights, 44 Indigenous sentencing courts, 258 Aboriginal domains, see Indigenous domains Aboriginal Justice Agreements, 247, 247n1, 268, 269, 271

Aboriginal land rights, 147 Aboriginal Legal Services (ALSs), 251–254, 256, 264, 265, 267, 303 Aboriginal policing, 107 Community Patrols, 92, 280 Aboriginal problem, the ‘Aboriginality,’ 113, 256 agency, concepts of, 225, 226 Aboriginal Protection regime British Parliamentary Select Committee on Aboriginal Tribes, 114 protectorates, 114 protectors, 114 Activism, 9, 12, 224 Activists, 3, 9, 56, 63, 67, 85, 86, 104, 110, 137, 217, 224, 250, 251

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2019 H. Blagg, T. Anthony, Decolonising Criminology, Critical Criminological Perspectives, https://doi.org/10.1057/978-1-137-53247-3

387

388 Index

Alcohol Community Patrols, 92, 280 family violence, 286 Alice Springs Night Patrol, see Tangentyere Ali Curung, 229, 267 Alterity, 64, 103, 134 Alternative sentencing, see Indigenous sentencing courts Alt-right, 3 Approaches privilege, 232 Assimilation, 6, 11, 36, 108, 113, 118–120, 138, 145, 189, 209, 264, 306 Automobility, 296–298, 304–307, 310 Autonomy, 58, 140, 155, 189, 217, 265, 287, 291, 297, 298, 306, 307 B

Backwardness, 33 Bail accommodation of Indigenous Law, 269 prohibition of customary law and cultural considerations, 269 Barbaric culture, 233 Bare life, 117, 122, 162–163, 171–172, 177, 178, 183–185, 189–192, 194, 204, 212–214, 279–281, 288, 294, 295, 302, 303, 319–326 Benevolent, 104, 112, 322 Border control, 322 Brexit, 3 British Government, 111

House of Commons, 111 laws, 247 British Parliamentary Select Committee on Aboriginal Tribes, 114 Bush Mechanics, 295, 304, 306, 307 C

Camp, 92, 109, 110, 113, 114, 122, 158–163, 167, 171, 172, 177–196, 204, 217, 279, 285, 288, 292, 294, 295, 303, 322, 323, 326 Carceral feminism, 203–235 feminism, 166, 203–206, 208, 214–215, 219, 224–230, 234–235 Carceralism civilising carceralism, 107, 120–123 penal carceralism, 108, 120–123 protective carceralism, 107–108, 120–123 welfare carceralism, 108, 120–123 Child protection authorities, 119, 204, 205n2 and colonialism, 217 police, 113, 193, 195, 209, 217, 218, 226 protectionism, 114, 116 Royal Commission into the Protection and Detention of Children in the Northern Territory, 85, 171, 172, 190, 210 Stolen Generations, 194, 210, 255

 Index 

Children, ix, 3, 36, 45, 49, 68, 73, 80, 85, 98, 103, 107, 108, 113–116, 116n2, 118–120, 122, 135, 137, 162, 163, 171, 172, 177, 178, 180, 181, 188–196, 204, 205n2, 206, 209, 210, 214–219, 222, 223, 225, 226, 228, 230–232, 234, 255, 256, 262, 264, 268, 270, 281, 282, 287, 292, 300–302, 304, 320–322 Christianity, 103, 109, 111, 116 Circle Sentencing, 258, 262 Co-existing laws, 252 Colonialism gender (see Coloniality of gender) genocide, 9, 11, 324 Orientalist representations, 179 Other, 7, 162 settler colonialism, 7, 15, 35–36, 59, 133, 154, 155, 160, 170, 179 Coloniality of gender, 207 Colonial matrix of power, 1, 6, 7, 21, 179–180, 203, 208, 227, 228, 323 Colonial patriarchy, 203–205 Colonisation, see Colonialism Community governance, 234, 282, 284, 286 Community Courts (Northern Territory), 247, 258, 270 Community justice groups, 265, 283 Community justice mechanisms Aboriginal Justice Agreements, 247, 268–269, 271 community based or community owned, 64, 216 community structures, 282

389

initiatives, 282 Law and Justice planning, 271, 324 self-determination, 265 Community Patrols appropriation of, 306 buffer, 288 case studies, 279, 281, 287 crime prevention, 290–292 government initiatives, 267, 270, 282, 283, 287, 289–292 infrastructure, 307 police, relationship with, 279, 283 safety, 87, 92, 268, 282, 283, 286, 287, 290 services, 282, 290, 310 women’s patrol, 285, 289, 293, 310 Community policing community patrols, 286, 293 crime prevention, 286 Conflict and resistance, see Resistance Containment, 113, 114, 156 Corporal punishment, 117, 122 Country, viii, 10, 22n2, 46, 50, 59, 63–65, 67, 71, 85, 91, 97, 99, 101, 109, 113, 123, 134, 139, 140, 147–148, 157, 178, 179, 181, 188, 190, 194, 203, 204, 208, 225, 230, 231, 245, 249, 261, 297–299, 305, 306, 324, 326 Courts colonial role, 258 Restorative Justice, 143, 263 Crime colonisation (see Colonialism) prevention, 44, 84, 286, 290–292 risk factors, 84

390 Index

Crime statistics and colonisation, 81, 88 and Western methodology, 93 Criminal justice system, ix, 5, 13, 19, 43, 44, 46, 47, 65, 80, 82, 84, 87, 106, 107, 117, 120, 137, 140, 184, 188, 206–208, 210, 222, 231, 233, 246–250, 252, 258, 262, 263, 271, 279, 281, 319, 320, 326 Criminal Other, 7, 80 Criminals, ix, 1, 4, 6, 17, 19, 46, 62, 80–82, 84, 87, 93, 100, 105, 121, 123, 156, 157, 159, 160, 192, 221, 226, 227, 246–257, 259, 262, 263, 269, 271, 294–296, 319–326 Criminal sentencing criminality, 5, 7, 13, 80–81, 88 hyper-criminalisation of Indigeneity, 7, 11, 47, 81, 287, 295, 301, 320 Indigenous representation in, 251, 252 Criminology conceptual orthodoxies, 91, 323 critiquing, 11, 16, 17, 43 decolonising, 1–8, 46, 50, 55, 79–93, 323 epistemology, 32, 43, 48 globalisation, 5, 32 Global North, 1, 6, 11, 12, 16, 17, 19, 32, 57, 97, 320, 324 methodology, 37, 79–93 other disciplines and, 16, 319 theory, 17, 32, 154 Culture Aboriginal youth, 41, 43, 87, 116, 231, 232

alienation, 225, 255 anomie, 308, 309 bail, 269 law, 36, 38, 48, 121, 134, 249, 250, 256, 304, 306, 311 protocols, 187, 261 sentencing, 220, 246, 251, 252, 254n3, 256, 269 ‘Culture of control,’ 11 Custom, see Customary law Customary law, 219, 220, 250, 252, 256, 269, 270 Customary marriage, 219–221 D

Death penalty, 122 Deaths in custody bare life, 171–172, 214, 288, 302 coronial inquiries, 171 ‘dragged like a kangaroo,’ 85 indemnity, 173 Indigenous women, 214, 228 Kwementyaye Jabaltjari, 302 Mr Ward, 302, 303 Ms Dhu, 85, 171, 212–214, 228 Mulrunji Doomadgee, 171 Tanya Day, 211 See also Royal Commission into Aboriginal Deaths in Custody (RCIADIC) Decarceration, 23, 81 See also Abolitionism Decolonisation decolonising criminology, 325–326 decolonising methodologies, 87 See also Three Rs Denunciation, 108, 250, 251 Deterrence, 188, 257

 Index 

Deviant, 33, 251 Diaspora, 34, 36, 56, 57, 59–60, 296–297 Difference, 10, 22–23, 41, 44, 60, 63, 134, 136, 142, 154–155, 157, 160, 164, 165, 196, 229, 270, 283, 289, 290, 303, 305, 321 Discipline on the body, 180 and punish, 178, 180 on the soul, 168, 177 Discrimination, see Systemic discrimination Displacement, 98, 113, 115, 249, 256 Dispossession, viii, 6–9, 11, 15, 16, 34, 36, 40, 56, 84, 87, 97, 98, 104, 117, 118, 134, 137, 139, 141, 158, 181, 182, 206, 207, 210, 228, 267, 269, 279, 300, 301, 303, 320, 322 family violence, 228 incarceration as management tool, 158 Diversion conferencing, 142 decolonising dimension, 9, 16–18, 20, 31, 32, 36, 38, 41, 47, 49, 61, 87, 89, 91, 118, 230–233, 235, 265, 324–326 restorative justice, 142, 143 youth offenders, 141 Drug courts, 213 Drugs family violence, 286 Duluth Model, 43, 205, 226 family violence, 226 ‘Dying out’ theory, 113 Dysfunction, 232, 309

391

E

Economic disadvantage, 84 Elders authority, 134, 246, 260, 267, 291 Community Courts, role in, 258, 268 Community Patrols, role in, 283, 292 Koori Courts, 258 restorative justice, 134 Elimination, 8, 47, 98, 110, 167, 183, 229 settler colonialism, 47, 229 Emancipation, 58, 219, 229 ‘Emergency,’ 185, 214, 218, 300, 320, 322 Empire building, 66 Empowerment, 4, 21, 31, 45, 206, 234, 325 Enforced sedentarism, 109 Epistemic violence, 6, 41, 104, 108, 110, 163, 209, 215, 234, 267 Epistemologies, 1, 9, 11, 14, 16, 18, 22n2, 32, 43, 48, 60, 63–64, 86, 138, 140, 144–146, 159, 179, 321 Exceptionalism, see Zone of exception Exclusion of culture, 57, 245 of Indigenous Knowledge, 179 of Indigenous Law, 122 of the Other, 179 Exile court ordered, 253 Indigenous Law, 253 Explaining over-representation, 143 Extermination, 113, 170, 171, 184

392 Index F

G

Family feuds, 222 Indigenous Law, 229 Family conferencing (NZ), 142, 145 Family violence aboriginal perspectives, 216, 227–228 aboriginal victims, 62 alcohol, 286 colonialism, impact, 228 crime prevention initiatives, 216–217 domestic violence, distinguished, 206 drugs, 286 feminist interpretations, 229 fighting women, 222 jealousing, 226 non-Indigenous ‘crisis intervention,’ 217 prevention programs, 281, 286 racism, 233 research, 226 women, empowerment of, 206 See also Violence Feminism carceral feminism, 203–235 family violence and, 206, 215, 228, 234 Western feminism, 206, 208, 234 See also Carceral feminism Feudal labour relations, 224 mode of production, 224 Flogging, 117, 169, 212 See also Whipping Frontier, 19, 103, 106, 107, 109, 113, 115, 170, 205, 296

Genocide, 4, 9, 11, 36, 47, 101–103, 139, 169 Gladue Reports, 246, 264, 265, 270 Globalisation, 5, 32, 55, 56, 58, 297 Global North, 1–6, 11, 12, 16–18, 21, 22, 32–34, 45, 55, 57, 59, 65, 79, 80, 83, 93, 109, 133, 135, 137, 138, 155, 157, 159, 172, 179, 186, 206, 224, 229, 245, 246, 280, 297, 320, 324 Global South, 1–4, 6, 7, 11, 12, 16–18, 32, 34, 57, 58, 103, 109, 118, 135, 140, 144, 158, 165, 172, 179, 296 Golden Dawn (Greece), 3 Governing crime, 234 Governing through crime, 142, 234 H

Hardship, 297 Healing healing centres, 231 holistic, 230, 231 principles of, 230 Hegemony, 2, 33, 45, 73, 103, 104, 106, 114, 116, 121, 166, 179, 245–247, 269–271, 304, 324, 325 Historical continuities, 138 Homelessness, 162, 187, 188, 281 Homogenisation, 305 Human rights Western human rights, 9, 325 Hybridity hybrid spaces, 251, 258, 297 two-way law, 265, 267 Hybrid justice, 245–271, 279–311

 Index 

Hyperincarceration, 15, 59, 107 Hyper-marginalisation, 2 I

Ideal victims, 221 Imaginative geography, 44–45, 157 Imagined community, 9, 41, 45 Inclusive exclusion, 322 Indigenous Australians, 10 community and, 42, 280 incarceration rates, 42, 123 Indigenous Law, 248, 249, 259 radical alterity, acceptance of, 134 relationships with white society, 300 social structure, complexity, 146 Indigenous automobilities, 297, 304–305, 310 Indigenous Canadians First Nations, 2n1, 12, 116, 262 Indigenous Knowledge, 48–49 Inuit, 71 Resurgence, 2, 271 Sami, 2n1 Truth and Reconciliation Commission, 104, 108, 116 Indigenous domains, 12, 42, 45, 85–91, 138, 286, 287 Indigenous Justice, 12, 13, 20, 69, 84, 87, 133–148, 257–259, 263, 320 Indigenous Knowledges, 11, 12, 14, 21, 40, 44, 48–50, 85–88, 101, 116, 139, 144, 179, 246, 249, 259, 309, 319, 326 definition of, 49 Indigenous Laws, 319 customary law, 252, 256, 269–270

393

Indigenous Law punishment, 252, 253, 297, 306n2 Indigenous punishment, 250, 252 recognition, 139, 249, 267 resilience, 271 two laws, 265, 266 Indigenous over-representation in the criminal justice system, 43, 82 in prison, 15, 98, 210 Indigenous Perspectives, vii, 37, 91–92, 246 ‘Indigenous problem,’ 81, 262 Indigenous sentencing courts Circle Sentencing, 223, 258, 262 Koori Courts, 258 Indistinction, see Zone of indistinction Individualised justice, 251 Infringement notices, 301 Institutionalisation, 107, 108, 145 Institutionalised trauma, see Inter-­ generational trauma Institutional racism, see Systemic racism Institutional violence, 106, 218 Inter-disciplinarity, 20, 40 Inter-generational trauma, ix, 64, 159, 206, 224, 228, 264 Internal colonialism, 98 International human rights, 44, 190 Indigenous law, 68 International law and colonisation, 39 and criticisms, 65–66 International relations, 12, 38–39 Intersectoral analysis, 235

394 Index J

‘Jealousing,’ 80 K

Koori Courts Elders, role of, 258 Kurdiji, 267, 268 L

Lajamanu, 229, 267, 268, 270, 293, 293n1, 298, 302, 308–310 Land and colonialism, 33, 35, 36, 148, 179, 324 and conflict, 59 and crime, 9, 109 See also Country Law and Justice planning Kurdiji, 267, 268 Law and Justice committees, 310 Law and order, 219, 226, 234, 245, 267, 286, 290, 294, 311 Lawlessness, 7, 170, 304 representations of, 7, 103 Legacy of colonialism, 85, 304 Legal pluralism, 56, 253 Lenience in sentencing, 252 Liminal spaces, see Hybridity M

Mandatory sentencing, 137 Manichean divide, 164, 322 Māori, 14, 17, 47, 106, 118, 136, 145, 250, 254, 260, 261, 263 Marginalisation, 84 Marriage, see Customary marriage

Massacre map, 100 Massacres, 99–103, 109, 110 Mass imprisonment, 15, 143 Mediation, 268 Yuendumu, 268, 284 Methodologies Indigenous, 91 Western, 93 See also Decolonisation Micro-solidarities, 213, 213n3 Missions, viii, 85, 98, 104, 107, 109–115, 118, 121, 159, 162, 177, 189, 209, 279, 295, 320, 323 Mitigation in sentencing, 252, 254 Moiety, 289 Moral panic, 219, 304 ‘Mother country,’ 163, 180 Mount Theo program, 309 Mudgin-gal Aboriginal Women’s Group, 85, 231 Murri Courts, 258 N

National Emergency, see Northern Territory Intervention Nationalism, 39 Nation building, 7, 41, 65, 73, 103 Nationhood, 39, 56, 70, 324 Nation state colonial function, 172 concept, 41 Native Title, 41, 64, 90, 139, 147, 233, 248 ‘recognition space’ and, 147 Necropolitics, 171–172 Neo-colonial, 45, 271

 Index 

Neo-liberal, 5, 34, 144 values, 144, 306 Ngarra law, 259, 260 Ngurra-kurlu, 249, 284 Night Patrols, see Community Patrols Normalisation of colonialisation, 91 Northern Territory Intervention, 193, 194, 205, 215–219, 267, 322 Nyoongar Patrol, 85 O

Offensive language, 82, 122, 211 Ontologies, 14, 22n2, 35, 43, 48, 60, 140, 266, 305, 321 Oppositional gaze, 166 Oppression, 1, 2, 8, 33, 37, 40, 46, 84, 140, 154, 157, 180, 184, 204, 206, 207, 210–224, 227, 228, 230, 322, 326 Orientalism, 44 ‘Other,’ 4, 7, 8, 38, 44, 46, 65, 80, 134, 137, 161–163, 179, 186, 192, 193, 195, 207, 219, 280, 298, 320, 325 Over-representation criminological theories, application of, 17 deaths in custody, 15 imprisonment, 15 P

Paternalism, 213, 234, 271, 301 Patriarchal colonialism, see Colonial patriarchy

395

Patrols, see Community Patrols ‘Payback,’ 306, 306n2, 307 Pegida (Patriotic Europeans Against the Islamisation of the Occident) (Germany), 3 Petrol sniffing, 281, 285, 308 Place, 2, 21, 31, 64–73, 79, 97–123, 134, 154, 178, 184, 212, 248, 281, 321 Place-based, 4, 17, 19, 42, 57, 58, 64–73, 79, 84, 97, 206, 229, 245, 247, 258, 266, 293, 321, 323, 326 sovereignty, 41, 279–311 Place-centred, 232, 245 Police colonial power, as focus of, 163, 279 community patrols (see Community patrols) community policing, 283 over-policing, 302 violence, 290 Positivism, 22–23, 79–81, 87 critique of, 22–23 Postcolonial criminology, 1, 31–50, 55, 57, 186, 188 Postcolonial perspectives, 37, 86, 155 definition, 19–22 Postcolonial theory, 5, 16, 21, 34, 39–41, 160, 234, 246 Post-disciplinary perspectives concept, 19–22 Poverty, 162, 187, 217, 264, 297 Pre-sentence reports, 264 See also Gladue Reports Primitive accumulation, 56, 57, 84, 116

396 Index

‘Primitive’ race, 8 Prison alternatives to, 64, 123 deterrent, 188 domain, as racism, 301 prison population, 10, 210 systemic racism, 188 women, 210, 217 See also Hyperincarceration; Over-representation Prison abolition, see Abolitionism Private punishment, 254 Privilege, 5–7, 12, 13, 19, 36, 37, 39, 45, 46, 62, 80, 82, 85, 91, 102, 119, 120, 164, 177, 203, 306, 326 Problematizing Indigenous people, 19, 322 Protectionism, see Aboriginal protection regime Public Execution, 117, 169 Public nuisance, 211 Punishment colonial, 122, 164, 165, 179 corporal punishment, 117, 122 death penalty, 122 Indigenous Law, 80, 122, 250, 252, 253, 259, 297, 306n2 See also Mass imprisonment Punitive turn, 11, 44, 157, 189, 293 R

Racism, 4, 33, 39, 42, 45, 82, 87, 107, 204, 233, 254, 255, 264, 322, 326 Rationing, 169, 306 Recidivism, 156, 320

Recognition, 14, 21, 39, 60, 68, 83, 104, 147, 153, 249, 250, 255, 266, 267, 270, 271, 296 cunning of, 60–61, 134, 323 Redfern, 34, 224, 251 Refusal, 9, 16, 18, 22, 37, 38, 40, 56, 57, 60, 113, 114, 153, 166, 178, 187, 189, 294, 295, 309–311, 321, 323–324 ‘Regimes of truth,’ 13, 44, 79, 86 Rehabilitation, 61, 224, 245, 256, 262, 265 Remote communities, 61, 204–206, 204n1, 257, 280, 282, 287, 288, 290, 299, 302, 308, 310 Reoffending, 261 Resilience of culture, 91, 307 of Indigenous Knowledges, 323 of Indigenous Laws, 271 of Indigenous peoples, 323 Resistance, 2, 3, 9, 11, 18, 22, 36–38, 43, 56–59, 63, 91, 99, 101, 103, 110, 113, 114, 118, 138, 153, 164, 166, 187, 189, 231, 247, 255, 263, 267, 268, 271, 304, 319, 321, 323–325, 325n1 Responsibilisation, 168 Restorative justice Australia, 136, 145, 147 Canada, 147 community and, 135 definition, 133 Elders, role of, 260 Indigenous Laws, 134 Indigenous perspectives, 134, 135 key themes, 134

 Index 

New Zealand, 145 philosophy, 140 Resurgence, 2, 9, 12, 17, 18, 22, 31, 37, 56, 57, 61, 64–73, 269–271, 323–324 land, 64 Retribution, 220 Righteousness, 13, 101 Risk, ix, 13, 15, 21, 57, 58, 81, 84, 87, 93, 108, 142, 144, 184, 211, 222, 223, 230, 246, 264, 265, 290, 302, 319, 326 criticisms, 15, 84, 87 Royal Commission into Aboriginal Deaths in Custody (RCIADIC), vii, 122, 171, 254, 279 Royal Commission into the Protection and Detention of Children in the Northern Territory, 85, 171, 172, 190, 210 S

Segregation, xiii, 19, 85, 98, 107, 113–118, 121n5, 192, 195, 196, 264, 279 Self-determination, 14, 20, 43, 45, 56, 60, 66–68, 70–73, 86, 89, 90, 108, 119, 120, 134, 153, 206, 224, 227, 230, 251, 265, 319, 324 Self-discipline, 115 Sentencing applied to Indigenous people, 245–271 decisions, 269 jurisprudence, 257 reports (see Pre-sentence reports)

397

Settler colonialism, 7, 15, 35–36, 59, 133, 154, 155, 160, 170, 179 Settlers, 2, 5, 7, 32, 33, 47, 59, 100, 103, 161, 248, 280, 295, 321 Settler societies, 10, 64, 109, 187 Sexual assault, 46, 218, 222 ‘Shaming,’ 145, 148, 218, 250, 253 ‘Skin’ relationships, 249, 284 Sobering-up shelters, 281, 292 Social Darwinism, 112, 113 Social engineering, 64, 229 See also Stolen Generations Southern criminology, 6 Sovereign body, 171 Sovereignty colonial, 38, 73, 164, 183, 323 Indigenous, 13, 15, 36, 40, 50, 56, 65–67, 72–73, 91, 104, 109, 119, 139, 161, 284, 325 Spearing, 250, 253, 254, 307 Squatters, 110, 117, 118 State colonialism, 8 international law, 66 State of emergency, 7, 171, 185 State of exception, see Exceptionalism State paternalism, 213, 233 Statistics, see Crime statistics Stereotyping, 44, 87, 88, 93, 222, 228, 229, 251, 308, 324 Stolen Generations, 194, 210, 255 Story telling Indigenous forms of storytelling, 12 and resurgence, 12 Suicide, 193, 218 Summary justice, 259, 268 Surveillance, ix, 8, 122, 156, 165, 166, 179, 194, 204, 211, 286, 293

398 Index

Suspension of law, 319, 322 Systemic discrimination, 3, 321 Systemic racism, 82, 106, 188 Aboriginal children, 4, 108, 115, 120, 178, 190–191, 193–195, 210, 216–218, 251, 300 criminalisation, 91, 188 deaths in custody, 188 imprisonment, 251 T

Tangentyere, 85, 92, 93 Community Patrol, 92 Research Hub, 92 Terra nullius, 41, 59, 104 Third World Approaches to International Law (TWAIL), 39 Three Rs, 18, 247, 323–324 Torture, xiii, 15, 117, 122, 171, 180, 181, 184, 186, 189, 190, 192, 194, 218, 321 See also Youth detention Treaty, 58 British Columbia, 73 U

UKIP (England), 3 Unfinished colonialism, 309 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 57, 66–70, 90, 139 United Nations Permanent Forum on Indigenous Issues, 66, 68

V

Victims of crime Aboriginal people, 93, 219–221 Family violence, 62, 222 non-Aboriginal people, 292 protection orders, 211, 222, 226 Restorative Justice, 136, 140 Violence colonial, 8, 101, 163, 187 family (see Family violence) media portrayals, 103, 216 pastoralist, 180, 181 ‘payback,’ 307 police, 193, 224 settler, 114 women (see women) W

Waminda, 230, 231 Warlpiri laws, 249, 267, 268, 270, 305 people, 267, 284, 295, 298, 304–306, 310, 311 See also Law and Justice planning Western Criminology, 43, 79–81, 83–84, 91, 93, 97, 98, 107, 168 Western metaphysics, 79 What works paradigm, 143 Whipping, 117 White colonial power, 246 white law, 170, 183, 259, 269, 270, 279, 298, 311 white system, 266 Whiteness, 7, 16, 44, 45, 47, 82, 102, 213, 214, 246

 Index 

White supremacy, 3, 134 Women carceral feminist perspectives, 203 Community Patrols, 282, 284 empowerment, 21, 206, 234 family violence, solutions to, 187, 205, 206, 222, 227–231, 233 Indigenous Laws, 4, 103, 138, 187, 203–235, 282, 293, 324 over-policing and under-policing, 162, 211 protection orders, 4, 193, 211, 222 victims of violence, 228 See also Coloniality of gender; Colonial patriarchy Worlding, 41, 121, 298

399

detention (see Youth detention) suicide, 193 torture, 15, 122, 180 Youth, 15, 64, 80, 85, 87, 123, 135, 141–143, 172, 180, 184, 189–193, 224, 260, 261, 270, 281, 285, 286, 292, 308 Youth detention Royal Commission into the Protection and Detention of Children in the Northern Territory, 85, 171, 172, 190, 210 torture, 15, 180 Yuendumu, 229, 267, 284–286, 291, 293–295, 293n1, 298, 299, 306–309

Y

Yawuru people, 64, 139 Yolngu law (see Ngarra Law) Young people culture, 64

Z

Zone of exception, 118, 160, 161, 189–191, 279 Zone of indistinction, 160, 161, 279