Russell Marks
Published by La Trobe University Press 2022
RRP $34.99
This is one of those books that leaves you feeling a wide range of emotions. However, the main feeling I had as I finished reading this exceptional book was some degree of shame at the extent of my ignorance about the true nature of the interaction of Aboriginal people and Australia’s legal system and its human impact.
This was despite the fact that I was a practising lawyer for 44 years. I was of course aware, in a general sense, of the findings of the Royal Commission into Aboriginal Deaths in Custody but was astounded to be reminded that it was 30 years since the Commission published its damning report. I was even more astounded to learn how much worse things had become since the Royal Commission made its findings and recommendations.
Author Russell Marks is a criminal defence lawyer who has worked for Aboriginal legal services in the Northern Territory and Victoria, and from the start of the book he pulls no punches. Often, when we read statistics about Aboriginal incarceration rates or deaths in custody, it is easy to tut tut, nod agreement, and then move on. But Marks gives the reader no way out, and in the introduction he hits the reader right between the eyes when he tells us about a young Aboriginal man by the name of Aaron who Marks represented in court on his first day as a duty lawyer in Katherine, NT.
Aaron was not new to the court system and had spent time in prison and in an alcohol rehabilitation facility. In the Northern Territory the police have the extraordinary power to subject a person to something called an alcohol protection order (APO). This has the effect of criminalising alcohol dependency and are primarily used against Aboriginal people.
Aaron is in court on this occasion simply because he was arrested for being drunk and allegedly in breach of an APO. He had been drinking in the context of grief resulting from the death of a member of his community. Aaron had 3 months left of a suspended prison sentence and ‘because he got noticed by a passing police patrol while he was drunk’, the judge sent him to prison for a total of over eight months.
After being confronted with Aaron’s sorry tale the reader then learns that the over representation of First Nations People has doubled since the royal commission. We are told that:
If you’re an Indigenous man, you are now more than fifteen times more likely to be locked up than a man who isn’t indigenous.
Indigenous women are twenty-one times more likely to be imprisoned than non-Indigenous women.
Marks then explains that:
My subject is Australia’s system of criminal justice: the system of laws and courts and police and prisons that we use to control behaviour we proscribe as ‘criminal’. I’m interested in the ways in which that system interacts with First Nations people and communities.
The book guides us through the history of the criminal justice system of Settler Australia-a term used throughout the book. How it was introduced and how it has grown from non-existence in 1788 into the system we have today, and how it has impacted our First Nations peoples.
The book examines the thorny question of how Britain claimed sovereignty over the land mass we now call Australia and points out that it was never done in accordance with the laws of the time. There were only two ways that James Cook was authorised to take possession of the land. The first was where the land was uninhabited, which it clearly was not, and the second was ‘with the consent of the Natives’, which Cook did not even attempt to obtain.
Through an analysis of various court cases Marks demonstrates the extent of rationalisation and mental gymnastics the courts have gone through over the years to justify the unjustifiable on the issue of sovereignty.
The failure of the courts to recognise pre-existing Aboriginal sovereignty has led the courts also to a situation where they could not acknowledge pre-existing Aboriginal laws and customs.
Marks takes us on a journey through the brutality of colonisation and demonstrates how, the so called fair and impartial British justice system was anything but fair and impartial when it came to the treatment of our First Nations people. Many were slaughtered by white settlers with no action generally being taken against the offenders.
Statistics often tell only part of any story but although this book does provide plenty of statistics and figures, the reason I think it will have such an impact on most readers, is the skilful way the issues discussed are powerfully illustrated with actual case studies. It strongly personalises and humanises the issues.
Marks explains that throughout Australia’s history there have been some attempts to integrate Aboriginal laws and customs into the justice system and to provide greater self-determination, and he explains how such attempts have often been met with a backlash from some in the community, particularly those with vested interests. One example he gives is the disastrous Howard Government ‘intervention’ into Aboriginal communities with the Government declaring that self-determination had failed when it had never really been tried. The intervention was clearly a case of government thinking that it knows best.
The book points out how prison sentences have so often been used as a solution to social problems and how prison is often the worsts of solutions. Nonetheless, harsher prison sentences continue to be called for by politicians and others despite the clear evidence that they do not work and are counterproductive.
Marks does not shy away from dealing with difficult issues such as violence by Aboriginal men against Aboriginal women and anti-social behaviour by Aboriginal children.
The final chapter of the book is titled ‘A New Beginning’ where he examines issues raised by the Uluru Statement from the Heart such as recognition, voice, treaty, and truth and looks to alternatives, although he candidly acknowledges that he doesn’t have all the answers. What he does make clear is that the present system is not working and invites us to use an open mind to seriously consider alternatives.
The concluding two paragraphs are:
When Indigenous people talk about justice, I don’t hear people saying there’s only one way. Invariably, they’re demanding to be heard, to be seen, to be recognised as sovereign peoples who have the right to justice on their own unceded country. They’re saying black lives matter.
How about we begin again, from that point?
This is a book that I would urge all Australians, particularly non-Indigenous Australians, to read and do so in a way where all preconceived ideas are put to one side. It is highly recommended.
John Watts
Retired Barrister, Gloucester resident, and author of ‘Nine Lives for Our Planet. Personal stories of nine inspiring women who cherish Earth.’ and ‘The Town That Said NO to AGL. How Gloucester Was Saved from Coal Seam Gas’. John is also the president of the Gloucester Environment Group and a member of the committee of Energise Gloucester.