For the past eight years I have taught Criminal Law to first year law students, and throughout the unit we explore the complex reasons for the overrepresentation of Aboriginal and Torres Strait Islander (ATSI) peoples in the Australian criminal justice system. Overall, at the commencement of the university semester students respond with typical stereotypical beliefs about the causes of this overrepresentation. These include: a perception that ATSI communities are inherently dysfunctional; ATSI people are prone to drinking and substance abuse; and ATSI communities are welfare dependent and unwilling to get out of the cycle of poverty.
Over the course of the fourteen weeks we challenge these stereotypes by exploring the criminogenic effects of colonisation and past brutal discriminatory policies; in particular, the stolen generation. We question whether the dismantling of colonisation and past discriminatory policy has eradicated deeply entrenched institutional racism, and how this continues to adversely impact on the material conditions and life chances of ATSI peoples. We also examine in detail the findings of the 1990 Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and follow the tragic life trajectory of Malcom Smith, a child of the stolen generation, and one of the ninety-nine deaths in custody investigated by the RCIADIC. We read numerous cases of subsequent deaths in custody, which frequently occur even thirty years after RCIADIC handed down its findings, and discover a continued failure by authorities to follow the recommendations. We then explore the ubiquity of discretion throughout the criminal justice process, from policing to judicial sentencing, which has time and time again resulted in the over-policing of certain offences in ATSI communities and the frequent handing down of maximum penalties at sentencing. The incident captured on video a few days ago—showing excessive use of force by a police officer against a young ATSI teenager in the Sydney suburb of Surry Hills—is an example of how frequently ATSI people are charged and prosecuted for public order offences, and how they are treated. At the end of the semester, there is satisfaction in knowing that many of the students—who upon completing their studies will become legal practitioners, policy advisors and possibly judicial officers—have developed a greater empathy and understanding for the plight of ATSI peoples. It is the dismantling of these stereotypes and prejudices that I believe leads to the most profound change.
The death in custody of Rebecca Maher disturbingly shows the extent to which stereotyping, that we might think is harmless, can have unintended and fatal consequences. Rebecca, aged 36 and a proud Wiradjuri woman, was detained at Maitland Police Station in NSW on 19 July 2016. She was brought into the police station as an intoxicated person, and from CCTV footage she is seen in the police charge room to be stumbling, incoherent and having difficulties breathing. There was no indication that her intoxication was caused by alcohol consumption. Rebecca died about five hours later in a police cell as a result of drug toxicity, with fatal levels of the drugs prescribed for her anxiety, as well as methadone which she had been using to deal with a heroin addiction. The coronial inquest heard evidence that the police officers involved did not search Rebecca because they feared she was carrying an infectious disease, a fear which was unfounded. The Acting Coroner held that if the police officers had conducted a simple pat down search, it was likely they would have found the pill bottles in her leg pockets and this would have alerted them to the cause of her intoxication and the need to call an ambulance. The inquest also heard evidence that prior to being put into the police cell, officers rejected her request for food, another breach under the legislation, which requires intoxicated persons in custody be provided with sustenance. Evidence was also submitted showing one of the officers in the charge room mimicking Rebecca’s stumbling as the behaviour of a chimpanzee. At 1.34 a.m, CCTV footage in the cell shows Rebecca leaned on the mattress, lay down on her right side with her back to the CCTV camera. Her right arm was above her head and her knees were tucked up slightly. She remained in this position until she was found dead at 5.51a.m in the morning. The Acting Coroner found that the police officers failed to follow procedure by conducting appropriate checks of the cell and incorrectly detained Rebecca under the legislation which required an incoherent person be given a reasonable opportunity to contact a responsible person. No recommendation was made to lay criminal charges against the police officers involved. Her tragic death could have easily been prevented had she been treated with dignity.
In conversation with friends and fellow-parishioners I often come across this kind of stereotyping and a perception that ATSI offenders should be harshly prosecuted for their offences. Most of them are people who have lovingly dedicated their lives to their families and serving the church, and as migrants have often overcome prejudice to prove themselves as valued members of the Australian community; however, they do not see how misguided and detrimental their attitudes can be. Unlike the students I teach over the course of the semester, they believe that there is no benefit in exploring these complex and difficult issues, and I am not sure that their bias can be overcome even by factual evidence. However, Scripture is our best teacher. We read about Jesus conversing with those who others consider unclean, sinners and marginalised. He challenges the legalism and hypocrisy of religious leaders and the disciples who believe that the people Jesus interacts with are not worthy of God’s love and care. He tells them that their lives matter, and in doing so, we witness new possibilities and the transformation that such love can bring. So, as Reconciliation Week comes to a close, may St Maria of Paris’ reflection on the Last Judgement fill us with awe:
The way to God lies through love of people. At the Last Judgment I shall not be asked whether I was successful in my ascetic exercises, nor how many bows and prostrations I made. Instead, I shall be asked whether did I feed the hungry, clothe the naked, visit the sick and the prisoners. That is all I shall be asked. About every poor, hungry and imprisoned person the Savior says ‘I’: ‘I was hungry and thirsty, I was sick and in prison.’ To think that he puts an equal sign between himself and anyone in need. . . I always knew it, but now it has somehow penetrated to my sinews. It fills me with awe.
Originally posted to the Facebook page of Saint Gregory the Theologian’s Orthodox Mission
4 June 2019 © AIOCS